The New England river commons

H-Environment recently published Zachary Bennett's review of Erik Reardon's Managing the River Commons: Fishing and New England's Rural Economy (U Mass Press, 2021). From the review:

After more than two centuries of damming and polluting their rivers, Americans are reversing course. Dams are coming down and the migrating fish that astonished early European explorers are returning.... Although rivers are coming to resemble their pre-industrial state now more than ever, few serious studies of early American waterways exist. Erik Reardon shows that these struggles to preserve riverine ecosystems are much older than river restoration advocates may have considered...

*****

The first two chapters establish the importance of river fisheries in indigenous and early colonial communities, arguing that both created sustainable common-use practices to protect fish. Reardon quotes heavily from other secondary sources and his arguments echo the likes of Jeffrey Bolster who have shown that colonists severely depleted fisheries immediately upon their arrival. Reardon effectively demonstrates that colonists both noticed that decline and realized they needed to enact conservation measures at least a full century before industrialization.

Chapter 3 reads as a composite biography of four river fisherman from Maine to Rhode Island who lived at the turn of the nineteenth century.... Their way of life came under considerable threat when commercial fishing practices entered rivers in the nineteenth century that netted the salmon and shad for sale in distant markets and enriched an emerging merchant class. Reardon shows that this class of farmer-fishermen ultimately turned to the state to punish unsustainable fishing practices and preserve rivers as traditional commons space.

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.

Molecular bureaucracy

The latest issue of Environmental History has an article by Evan Hepler-Smith, "Molecular Bureaucracy: Toxicological Information and Environmental Protection". The abstract:

Legal and political claims about environmental chemicals typically address such substances on a molecule-by-molecule basis. This article argues that this approach is not determined solely by the nature of chemicals. Rather, it is the product of legal structures, administrative procedures, regulatory lists, information systems, and nomenclature conventions, which I collectively term “molecular bureaucracy.” This article traces the development of molecular bureaucracy, a global framework of environmental governance grounded in American regulatory infrastructure, and its political and environmental consequences. It does so by following the history of per- and polyfluoroalkyl substances, synthetic chemicals in widespread use since the 1950s whose toxicity has become a prominent subject of research and public concern since the late 1990s. Molecular bureaucracy originated in a classification system based on molecular identity developed to make chemical information accessible to the late nineteenth-century synthetic chemicals industry. It came to structure environmental law and politics through, first, the efforts of 1960s US policy-makers to render toxic hazards subject to government control through computer-based information coordination and, second, a vision of chemical holism within the nascent US Environmental Protection Agency and the Toxic Substances Control Act, which sought to accommodate the global environment to rational administration by aggregating diverse toxic hazards and reframing them as abstract chemical substances. The history of molecular bureaucracy offers valuable insights for present-day efforts to ground toxic substances scholarship and politics in alternative conceptions of environmental chemicals.

(Chemická informatika)

Leaded

January's Environmental History has a review by Leif Fredrickson of Michael Mix's Leaded: The Poisoning of Idaho’s Silver Valley (OSU Press, 2016). From the review:

The poisonous history of the Bunker Hill Company should be as well known to environmental historians as the Battle of Bunker Hill is to historians of the American Revolution. Located in the Silver Valley in northern Idaho, Bunker Hill mining and smelting operations polluted the surrounding area and poisoned residents and workers with lead for a century. In the 1970s, Bunker Hill’s operations wrought “the worst community lead exposure problem in the United States,” according to the Centers for Disease Control and Prevention. The silver lining to the Silver Valley disaster was that it fueled new and stronger national regulations for lead pollution.

In Leaded, Mix seeks to unearth the “root causes” of mining and smelter pollution in the Silver Valley. He argues that pollution went unabated for most of the twentieth century because the government sought to empower Bunker Hill in the pursuit of economic development and western settlement. Countervailing forces were either too weak or too dependent on the company to resist the massive pollution externalities the company foisted on others. Workers and Silver Valley residents often spurned criticism of the company—“Uncle Bunker” as locals called it—for fear of losing the area’s key employer. Similarly, state politicians feared losing a thriving business and a source of taxes. Bunker Hill’s economic and political power produce favorable legislation and the company benefited from judges and regulators who sided with the industry over labor and those harmed by pollution. Bunker Hill’s power was also rooted in knowledge. The state government lacked the resources to know much of what Bunker Hill knew, or could have known, about the poisoning of workers and the community.

Until the 1970s, the federal government did nothing to change this situation. Federal courts doled out, at best, piddling compensation for land and livestock poisoned by mines and smelters. Federal environmental laws were weak until President Richard Nixon created the Environmental Protection Agency (EPA) and Congress passed legislation that could force states to meet air and water pollution standards. Meanwhile, in 1973, a fire destroyed part of Bunker Hill’s already outdated pollution control system. But with lead prices soaring, the company chose to continue operating its smelter anyway. The resulting widespread poisoning of children in the community, which came to light over the 1970s, catalyzed the EPA’s first air lead standard, promulgated in 1977, and provided evidence for a relatively low acceptable lead level. According to Mix, the air lead standard, along with more stringent occupational health standards, “signified an end for most western lead smelters,” since they could not profitably meet the new technology requirements. Bunker Hill shut down in 1981.

Digital library II: A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses (1877)

Following up last week's post on Michael Lobban's piece on the British Rivers Pollution Prevention Act, 1876, the second work to be added to our digital library of historical environmental law is Clement Higgins's A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses, published in London by Stevens and Haynes in 1877 (a year after enactment of the water pollution legislation). (An 1882 advertisement for the work is here.)

Just as the treatise on game law covered here last week emphasized the inherent conflict of interest between different social groups and the distributive effects of the law, Higgins writes in the Preface:

It is to the interest of the public, and to the majority of riparian proprietors, to protect the purity of our rivers, whereas it is generally to the convenience of sanitary authorities and of manufacturers to pollute them.

An attempt is made in this book to place before the protectors of our rivers the nature of their rights and how they may best be protected, and before the polluters of our rivers the extent of their liabilities and how they may best be met.

The author was apparently not only a barrister but also a scientist, "formerly Demonstrator of Chemistry at King's College, London".

The treatise is divided into two parts: Part I covers the 1876 statute, organized around different types of pollution: solid matter, sewage, manufacturing effluents, and so on. Part II, entitled "Riparian Rights and Their Protection", covers the common law of water rights with an emphasis on issues of pollution.

A long appendix reproduces statutory provisions on the subject, a useful resources for any historian wanting to understand the environmental regulation of the time, anchored in laws that we might not recognize as "environmental" today, such as the Metropolis Management Act, 1855.

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.”

State-federal relations and American antienvironmentalism

Youngstown Sheet and Tube Company’s Campbell Works, Youngstown, Ohio (c. 1960)

Ohio Valley History recently published Allen Dieterich-Ward's "'We’ve Got Jobs. Let’s Fight for Them': Coal, Clean Air, and the Politics of Antienvironmentalism". From the introduction (notes omitted):

Narrating the history of the environmental opposition has grown in importance over the past four decades as the rapid expansion of environmental laws gave way to a conservative antienvironmental movement determined to roll back policies seen as challenging older legal imperatives and in conflict with economic goals. Since the 1980s, first journalists and then historians have focused on the back and forth of environmental policymaking. The basic narrative is of an environmental backlash, which began in the mid-1970s in western states—the Sage Brush Rebellion that formed one of the conservative pillars in Reagan’s coalition. By the 1990s, protests over tightening federal land regulations coalesced ideologically into the wise use movement, which purported to be a modern update of Progressive Era practices (conservationist Gifford Pinchot coined the term “wise use” in 1910). As environmental politics became increasingly partisan, resurgent Republicans in Congress, such as Idaho’s Helen Chenoweth, Tom Delay of Texas, and Alaskan Don Young seized on the principles of wise use and made rolling back environmental regulations key to their “Contract with America.”

The Sage Brush Rebellion narrative provides a compelling shorthand for journalists and historians alike and is doubtless accurate in describing one element of the rise of the environmental opposition. However, the broader narrative of a grassroots backlash prompted by the relative liberalism of the 1970s has recently faced criticism by scholars who point out the ways this framework can mask the purposeful top-down strategies of powerful elites seeking policy wedges to divide the Democratic political coalition. Further, the regional focus of the Sage Brush Rebellion poses the same problems for the story of antienvironmentalism as the overemphasis on the American West that has often characterized scholarship on the environmental movement. While western concerns about federal land ownership sometimes dovetailed with fears among eastern politicians, industrialists, and blue-collar workers about the effects of environmental regulation on jobs, the latter proved at least as decisive in shaping the political landscape as conservationists within the Republican Party were first sidelined and then largely eliminated on the national level. The saga of the spotted owl and old-growth forests in the Pacific Northwest, after all, cannot fully serve as a stand-in for battles over algae blooms in Lake Erie or acid rain in the Ohio Valley and New England. In industrial cities like Gary, Indiana, and Cleveland, Ohio, opponents of environmentalism seized on plant closures as proof positive of their concerns about privileging “clean air and pure water” over “jobs and continued economic progress.” 

Regulation by river commission

This Day in Water History recently posted the following:

December 18, 1913: Municipal Journal article—To Prevent Fox River Pollution. “Geneva, Ill.-Acting under authority conferred at the last session of the legislature, the State Rivers and Lakes Commission has ordered officials of the cities of Batavia, Aurora, Geneva, Elgin and St. Charles to take immediate steps to prevent the pollution of Fox river by sewage and factory wastes. The five cities were given until April 7, 1914, to prepare plans and specifications for filtration or sewage disposal plants or otherwise prepare to discontinue the emptying of sewage into the river. The Fox river cases are the first of the sort to be acted upon by the commission. Similar action will be taken in numerous other cities located along Illinois rivers or lakes if complaints are made and substantiated. Lake Forest and other North Shore cities that have complained of lake water pollution by factories are expected to take their grievances to the commission. Witnesses before the commission testified that during low water periods the Fox river was polluted to such an extent as to he a serious menace to the health of 200,000 inhabitants of the Fox river valley. It was also shown that thousands of tons of ice were taken from the river every year and sold in these cities and in Chicago. Another objection to the emptying of sewage into the river was the fact that fish were unable to survive.”

Commentary: River commissions in several states were beginning to take action against the grossest pollution problems in the early part of the 20th century.

For more on regulation of water pollution in the Great Lakes see here and here.

Art and the history of environmental law - part IV: Art and the conditions of environmental law (twentieth century)

Following Part III of this series, featuring the French Impressionists and Oscar Wilde, we move on to the twentieth century.

Franz Marie Jansen, untitled, from Industrie, 1920

In the first half of the twentieth century, air pollution seems to take on a progressively darker cast, both literally and figuratively. While it is difficult to read the pollution in many posters of the interwar era, such as one for the 1925 Paris Exposition Internationale des Arts Décoratifs (above), as anything but a symbol of progress, in the works of the German Expressionists such as George Grosz and Franz Marie Jansen (right), pollution often seems an inseparable part of their generally bleak world view.

George Grosz, Outside the Factories, 1921

Beyond the cultural and aesthetic, American art in this period also seems to begin to engage with pollution as a political issue, and thus potentially a legal one. An early but suggestive understanding of pollution is offered by the symbolist Elihu Vedder’s mural Corrupt Legislation (below) created for the new Library of Congress building around 1898. Art historian Richard Murray explains:

Art and the history of environmental law - part III: Art and the conditions of environmental law (more Impressionists and Wilde)

Following Part II of this series, I continue the discussion of art and the conditions of environmental law as seen in the work of the French Impressionists.

Monet and Pissarro produced many landscapes of the industrializing Seine Valley around Paris, as did other Impressionists and Post-Impressionists. Manet’s 1874 Argenteuil, les canotiers (1874, above), with its idyllic foreground and smoky background, seems uncertain in its attitude to industrial pollution. It was ridiculed by a contemporary critic who insinuated that the blue of the river must have been the product of industrial pollution, yet T.J. Clark sees it as the picture in which effort was made to place in order the middle class, the countryside, and industry “and insist they belong together.”  

Gustave Caillebotte’s depictions of the same site show a cubist-like ability to shatter reality into multiple points of view. While his Boats Moored at Argenteuil (1883, above) shows no hint of the industry in the area, Factories at Argenteuil (1888, right) shows a bleak industrial landscape with gray smoke feeding gray skies, reflected again in the gray water. La Seine à Argenteuil (c. 1892, below), with its almost natural landscape dominating the foreground and smoking factories in the background, juxtaposes these two aspects of reality, distinguishing, on the one hand, between pristine nature and industrial pollution, yet at the same time melding chimney smoke and natural clouds.  Are these depictions of Argenteuil simply the artist’s attempt to depict different facets of reality, a celebration of industrialization, or a critique and warning of the threat posed by modern pollution to the aesthetic of nature and countryside?

Labor and environmentalism in Canada

Sarnia Chemical Valley, Ontario (by P199)

Last year we noted an article on American labor organizations and environmental regulation; it turns out that around the same time an article was published on a similar phenomenon in Canada; Katrin MacPhee's "Canadian Working-Class Environmentalism, 1965–1985" appeared in last year's Labour/Le Travail. The abstract:

The historiographies of Canadian labour and environmental activism have largely overlooked the existence of a distinctly working-class environmental consciousness in Canada between 1965 and 1985. This worker-oriented environmentalism was expressed in three separate but interrelated strategies. First, labour activists in the 1960s through to the 1980s undertook independent research into the environmental contaminants present in their own workplaces and subsequently released into the larger environment. Second, a number of Canadian unions consistently endeavoured to compel branches of the Canadian government to adopt and enforce strict environmental policies and regulations. Third, Canadian union members exercised the weapons at their disposal – collective bargaining, demonstrations, and strikes – to prevent harm to environmental and human health alike. Through an analysis of these realms of struggle, I outline an environmentalism born of a class analysis of health and disease under capitalism.

Cost-benefit analysis in recent history

Michael Livermore and Richard Revesz recently posted "Interest Groups and Environmental Policy: Inconsistent Positions and Missed Opportunities". In it they argue that over the last few decades the positions of polluters and environmentalists on two of the central questions of environmental law and policy have flipped. The abstract:

This Essay examines and explains the positions of the principal interest groups over the past four decades with respect to the two central questions of environmental policy: the appropriate policy goal and the instrument that should be used to carry out the policy. With respect to the first question, the Essay observes that, at the beginning of the contemporary period of environmental law, industry groups strongly supported setting the stringency of environmental standards by reference to cost-benefit analysis. At the same time, environmental advocacy organizations strongly opposed the use of cost-benefit analysis. As environmental regulators gained greater proficiency in the quantification and monetization of environmental benefits, industry groups came to see that, when properly conducted, cost-benefit analysis could justify stringent environmental protection. Consequently, they have abandoned their original enthusiasm for the technique. Similarly, over the same period of time, environmental groups came to see the promise of cost-benefit analysis, for similar reasons.

An example of an industry attack on marketable permits

With respect to instrument choice, industry groups were originally attracted to marketable permit schemes as a lower-cost means of achieving pollution reduction, while environmental groups were skeptical of the these approaches. First with the Clean Air Act Amendments of 1990, and then when faced with the daunting challenge of climate change, environmental groups acknowledged that market mechanisms are more economically and politically viable than command-and-control regimes because they impose far lower aggregate costs on society. And, industry groups realized that by attacking marketable permit schemes they might defeat greenhouse gas regulation altogether. 

While environmental groups and industry have largely switched positions on the two central questions of environmental policy, the points at which their positions overlapped were fleeting, and opportunities to make substantial progress in rationalizing the system of environmental regulation have largely been unrealized.