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.”

Forest and Labor in Madagascar

The January issue of Environmental History has a review by Ivan Scales of Forest and Labor in Madagascar: From Colonial Concession to Global Biosphere by Genese Sodikoff (U Indiana Press, 2012). Scales writes:

The book touches on familiar themes of exclusion, subjugation, resistance, and the clash of worldviews. It focuses in particular on the role of low-wage manual labor in biodiversity conservation, the conservation agents who do the “grunt work” of protecting biodiversity in Madagascar. As well as building and maintaining park infrastructure, portering, guiding tourists, and policing protected areas, conservation agents are expected to spread Western conservation ideology and educate members of their own communities. Low pay and uncertain working conditions mean they must often continue with the swidden forest clearance practices that their bosses find so problematic. This is just one of the many contradictions at the heart of environmental management in Madagascar.

Despite the importance of these laborers, they have often been rendered invisible by the heroic view of conservation in Madagascar, where the intellectual labor of scientists and conservationists is privileged over the day-to-day practices of on-the-ground environmental management and rural life. Sodikoff's thesis is given empirical and analytical depth through its historical approach and comparison of contemporary conservation with colonial labor practices. The book covers a period of just over a century, starting with the arrival of French colonialism at the end of the nineteenth century. Sodikoff reveals the values that shaped colonial attitudes to both nature and labor. While the colonial state saw the island's natural resources as a potential source of great wealth, it saw the Malagasy workforce as a barrier to progress, reluctant as it was to undertake waged labor on concessions and public works. The French government's answer was to instigate a system of “moralizing taxes” and forced labor that it believed would not only supposedly encourage rural Malagasy into the cash economy but also convey a new work ethic and help its mission civilisatrice.

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.

Labor unions and forest protection

The connections between working-class environmentalism and environmental law is an understudied theme that I've had occasion to highlight before (e.g. here and here and in my forthcoming article on historical analysis in environmental law). Last year I noted that Erik Loomis won an award for his article, "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948". Now Robert Walls has a review of Loomis's book, Empire of Timber: Labor Unions and the Pacific Northwest Forests (Cambridge UP, 2015), for Environmental History. From the review:

Focusing on everyday labor and the designs of union activists, Loomis provides a complex portrait of how the industry’s base attempted to advance its goals of securing both sustainable forest resources and health and safety protections for men and women in an often dangerous workplace. The result is an informed analysis of labor’s successes and failures, one that broadly encompasses the radicalism of the Industrial Workers of the World (IWW), the challenge of the International Woodworkers of America (IWA) to midcentury forestry policy, and organizing efforts by countercultural reforestation cooperatives in the 1970s to oppose herbicide exposure.

Drawing productively on Thomas Andrews’s notion of “workscapes” and Rob Nixon’s concern with “slow violence,” the author demonstrates how the IWW, and the industry-sponsored Loyal Legion of Loggers and Lumbermen, initiated reforms to an increasingly industrialized work environment that punished bodies through the speed of production or the creeping pathology of disease from poor camp sanitation. A more holistic approach to the “total work environment” (p. 133) was later adopted by the IWA to moderate the debilitating impacts of postwar production technology; the union marshaled evidence from scientific sources and eventually called upon Occupational Safety and Health Administration regulations to combat the effects of new ailments, such as the auditory and neurological consequences of prolonged chainsaw use and the toxic impact of chemicals, such as pentachlorophenol, used in mills.

Loomis’s description of union critiques of industrial forestry’s destructive practices—decades before the modern environmental movement—is equally illuminating.

When loggers were green

The Forest History Society awarded its 2016 Blegen Award for the best article on forest and conservation history to Erik Loomis for his "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948", published in Western Historical Quarterly.

Soleduck Falls shelter, Olympic National Park, constructed 1939
(M. Stupich, courtesy of National Park Service, Pacific Northwest Region)
The IWA was a strong supporter of the creation of the park for protecting old-growth forest

There's a lot of law in the article, though the union was often on the losing side. The opening paragraphs:

In April 1939, Harold Pritchett, president of the International Woodworkers of America (IWA), went on radio station KIRO in Seattle to explain his union’s program for forest conservation. Pritchett bluntly attacked the timber industry for its wasteful practices, noting, “under the present policy of timber destruction three feet of Northwest timber is being used for every new foot being grown.” Saying the nation’s forests were too important to serve corporate masters, Pritchett demanded a government-led reforestation program that would hire unemployed loggers and recharge the timber resource. He argued for federal policies mandating selective logging rather than clear-cutting large patches of forest. Pritchett justified federal intervention by comparing it to the New Deal’s expansion of government authority into public utilities and banking as well as the passage of the Social Security Act. Only through “initiating a forest program that is based on the needs and also the responsibilities of the forest land owners” under “federal control of forest cutting practices,” Pritchett declared, could the forests of the Northwest remain productive for future generations.

Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

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.

Ghostworkers and Greens

October's Environmental History had a review by Erik Loomis of Adam Tompkins's Ghostworkers and Greens: The Cooperative Campaigns of Farmworkers and Environmentalists for Pesticide Reform (Cornell UP, 2016). Tompkins's book seems to add to a growing body of work on the labor movement as a force behind important developments in environmental regulation. From the review:

Because legislation excluded agricultural workers from the New Deal’s labor protections, farmworkers lacked political power, forcing them to seek alliances with middle-class organizations to win their battles and protect themselves from the chemicals used by growers. Environmental organizations needed farmworkers to counter accusations of being anti-worker and to ground their claims in the lived experiences of the most affected populations. The UFW’s 1970 grape contract included provisions that banned growers from using chlorinated hydrocarbons such as DDT and dieldrin. This laid critical groundwork for environmental groups’ final push for an EPA ban on DDT in 1972. As the 1970s went on, the Sierra Club and other leading environmental organizations developed a growing awareness of social justice and believed they had a natural alliance with farmworkers. This can be overstated, as the 1990 letter sent by the Southwest Organizing Project to major environmental organizing accusing them of “racist and exclusionary practices” demonstrates. Perhaps Tompkins could have evaluated these accusations in the context of his work on environmentalist work with farmworkers, but he does not.

Three later chapters on state-level activism in Arizona, California, and Florida are where Tompkins digs deep into the details of coalition building. In Arizona, years went by with suburban white environmentalists and rural Latino farmworkers missing each other as they each went through waves of activism over pesticides. Finally, the two groups built a meaningful alliance after agricultural pesticide drift threatened expanding suburbs in the mid-1980s, leading to the Arizona Environmental Quality Act in 1986. In California, both groups fought Governor George Deukmejian’s deregulation efforts in the 1980s, but often with different priorities that hampered close cooperation, even as good relationships between them were cultivated and maintained. Finally, Tompkins closes the book with an examination of how farmworkers and environmentalists worked together in Florida and California against methyl bromide after growers’ associations launched a battle to resist the limitations on its use the United States agreed to in the Montreal Protocol in 1987 to fight ozone depletion. Greens and workers could not completely counter the growers’ power, but their work did raise public awareness about the chemical and led to growers seeking alternatives, even as it is still used today. 

Standard Oil and environmental law

The October 2014 issue of Environmental History has a lot of law in it. We'll start with Jonathan Wlasiuk's "A Company Town on Common Waters: Standard Oil in the Calumet". Wlasiuk writes:

Although the twentieth-century American environmental movement was punctuated by the voices of critics within the modernist state, from Aldo Leopold to Ed Abbey, the predominant narrative focuses on calls for federal management of ecosystems that had been controlled by corporations and local governments since the advent of the industrial era. Environmental historians have engaged the debate over whether private or public forces bear responsibility for environmental decline by examining what Christine Meisner Rosen calls “industrial ecology” in search of the business roots of environmental degradation or, less often, rehabilitation. The federal regulatory framework of the EPA and the raft of antipollution legislation that emerged in the 1960s and 1970s was the culmination, not the beginning, of both federal investigations of public health concerns related to industry dating back to the New Deal era and the failure of a cluster of state oversight, local control, and free market solutions. Betsy Mendelsohn has argued that these regulatory precursors are important because they “established the legal setting for the modern environmental law movement that culminated in NEPA in 1969.” A significant chapter in this transition occurred on the Great Lakes in the twentieth century. The industrial ecology of Lake Michigan reveals the failure of market solutions and local control over the environment: corporations found little incentive to protect the quality of common waters and Lake Michigan collected the ecological consequences from polities severed by state boundaries.

This article examines the growth of federal regulatory power by analyzing a turning point in the ecology of the Calumet region on the Illinois-Indiana border and Lake Michigan. In 1889 Standard Oil transferred the heart of its domestic manufacturing empire from Cleveland, Ohio, to Whiting, Indiana, where it constructed the largest oil refinery in the world. Along the lakeshore of northwest Indiana, Standard Oil began an experiment to reorganize its petroleum empire on the principles of scientific management. For nearly eighty years, the company lived the libertarian dream of freedom from government regulation and extended the logic of scientific efficiency to the control of labor and the environment. In private interviews Rockefeller revealed the guiding ethos of his empire: “I shall hail the day when our watchword shall be efficiency, as applied to labor, to people in all positions.” As industry flocked to the Calumet region and reached a critical mass in the early twentieth century, the consequences of industrial efficiency washed down the Calumet River and into the ecology of Lake Michigan.

Chicago Park District employee Philip Saeli sprays
deodorant on dead alewives at Montrose harbor in July 1967.
Bob Langer, photographer. Courtesy of Sun-Times Media.

When water pollution drifted over state boundaries, a growing awareness of the inability of local and even state governments to control industry developed into calls for wholesale reform by midcentury. As Hugh Gorman has argued, postwar federal government mandates redefined corporate efficiency “from a guiding ethic rooted solely in the efficient use of resources to one that recognizes the need to comply with regulations based on environmental objectives.” The corporate ecology of Standard Oil on Lake Michigan reveals how a commitment to technological control and efficiency produced an environmental collapse that transformed Lake Michigan and threatened the public health of millions of Americans. Although the federal government intervened by the late 1960s, their caution in deferring to local, state, and interstate solutions challenges [James] Scott’s characterization of an aggressive “administrative ordering of nature and society.” In the Calumet region, this description better fits the actions of industrial corporations. 

Among other interesting points, here is Wlasiuk putting a renowned court decision on the public trust in context:

Guano and debt peonage

Edward D. Melillo's 2012 American Historical Review article, "The First Green Revolution: Debt Peonage and the Making of the Nitrogen Fertilizer Trade, 1840–1930", has been awarded the Nineteenth Century Studies Association Article Prize. From the beginning of the article:

Between the 1840s and the 1930s, Peru and Chile exported hundreds of millions of tons of nitrogen-rich guano (dried bird excrement) and sodium nitrate (NaNO3) to places as far-flung as California, Virginia, Prussia, Great Britain, and France. For farmers in North America and Europe, guano and sodium nitrate dramatically increased agricultural productivity during the final phase of the Industrial Revolution, which lasted from roughly the mid-1800s through World War I. The widespread availability of imported fertilizers also facilitated a departure from organic “closed systems” of farming, in which nitrogen is cycled among soil, plants, animals, and people at the local scale, toward “open,” energy-intensive approaches to agriculture that included additions of nitrogen from distant places.

This major human intervention in the nitrogen cycle was closely linked to fundamental shifts in global labor relations during the Age of Abolition (1780s–1880s). In 1807, Britain outlawed the importation of African slaves to its colonial empire. The following year, the United States banned the importation of slaves, while in 1811, Spain abolished chattel slavery at home and in all of its colonies except the “sugar islands” of Cuba, Puerto Rico, and Santo Domingo. Despite such overwhelming victories for abolitionism, new forms of servitude emerged to replace those that faced extinction. Often these arrangements involved debt peonage, the repayment of loans with fixed periods of physical labor.

Early environmental justice

Legal Planet's Jonathan Zasloff recently noted the publication of Josiah Rector's "Environmental Justice at Work: The UAW, the War on Cancer, and the Right to Equal Protection from Toxic Hazards in Postwar America" in the Journal of American History. The article greatly enriches our knowledge of the history of the environmental justice movement; indeed, of the history of environmental law as a whole. Rector writes:

Despite the amplitude of the literature, occupational health historians have devoted surprisingly little attention to the relationship between health and safety activism and the post–World War II civil rights and feminist movements, or the role of health and safety activism in the rise of the environmental justice movement.

Ford's River Rouge Plant (1931)

Meanwhile, the nascent historiography of the environmental justice movement, largely written by social scientists, has tended to ignore labor's contributions, with the important exception of the United Farm Workers 1968–1971 campaigns against pesticide exposure. Most books about environmental justice, including many brilliant and formidable works of scholarship, present a brief, potted history of the movement, beginning with the struggle over polychlorinated biphenyl (PCB) dumping in Warren County, North Carolina, in 1982. Scholars of the topic have neglected the fact that as early as 1970 occupational health and safety activists used the term environmental justice to refer to the right to protection from toxic hazards codified by the Occupational Safety and Health Act (OSH Act) and the National Environmental Policy Act (NEPA). Few scholars, moreover, have noted that the UAW's 1976 Working for Environmental and Economic Justice and Jobs National Action Conference in Black Lake, Michigan, helped popularize environmental justice. This elision is ironic, since the disproportionate exposure of workers and people of color to toxic hazards was a major theme of the conference—one of the first to gather civil rights, feminist, labor, and environmental activists for sustained dialogue.

Rector's article focuses on occupational cancer in American auto plants as a case study. I hope we'll continue to see more work by him and others (see for example recent articles by Gregory Alexander and Stefania Barca) on working class environmentalism and environmental law.

Mahogany in early America

The latest issues of Law and History Review and Environmental History both review Jennifer Anderson's Mahogany: The Costs of Luxury in Early America (Harvard UP, 2012). The reviews highlight the way the interaction of environmental history and legal history can shed light on wider topics such as labor, slavery, and empire.

Jeffrey Kosiorek in EH emphasizes the importance of environmental history for the wider social and economic history:

Anderson recognizes throughout that the cultural value of mahogany and its social, political, and economic importance through history cannot be separated from the ecological realities of the trees and the ecosystem they inhabit. For instance, the rich beauty, durability, and size of the wood that made it so desirable is itself a product of the tree’s tropical environment where it grows year-round leaving tightly packed, indiscernible growth rings. Widely dispersed amid many other species, harvesting mahogany not only resulted in deforestation, but it also allowed slaves a degree of autonomy and local knowledge that they could use to gain their freedom. Likewise, the trees’ limited range set off a scramble to control its territory among European powers and individual speculators.And, as extractors depleted the choicest trees, smaller, inconsistent mahogany lumber came on the market, causing a shift in consumers’ taste and understanding of the wood.

Zachary Dorner's review in LHR has more of a legal emphasis:

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.

Cronon and commodification

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential Nature's Metropolis (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts:

[Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries.

This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica. The most important distinction, perhaps, was between the human and the nonhuman: proletarianization is, after all, a human process.

Commodification, on the other hand, tends to overwhelm distinctions, starting with the human-nonhuman: while only humans can be proletarianized, everything can be “priced”—placed in a relationship with other things that can be expressed in terms of a number. Even more, while the process of proletarianization seems never to engulf the whole of a person (see my argument in this post), commodification assimilates both individual humans and their internal qualities to a system of commensurable valuations: your cheerfulness as well as your blood pressure, your knowledge of Latin as well as your attention can all be denominated in dollars, no different from a television or a ticket to a concert.

In this way, the story of commodification flattens distinctions between humans and the (rest of the) natural world, demolishing proletarianization’s marked anthropocentrism. Putting a price on human lives or health or knowledge or creativity and putting a price on a chair or a car is one single continuous process; as much as labor could be abstracted as just one more input or one more production cost, the story of making humans into proletarians was always distinct from—if parallel to—the story of extracting value from the natural world.

There are various ways to account for this shift in historical narration away from proletarianization’s anthropocentrism. Certainly, the influence of environmentalism has something to do with it. While very much leftist critique descending from Marx is (still) only fitfully cognizant of ecological critiques of capitalism, some of the ontological premises of an ecological worldview have seeped into culture so generally that an older stark separation of the human and the nonhuman is no longer tenable.

Another possible explanation comes from the small explosion since the 1990s of works in the subfield of what Lorraine Daston has dubbed “historical epistemology,” which as Sklansky defines it is the study of “the invention of new kinds of fact such as employment figures and credit ratings along with the modern metrics and matrices that produced them” (Sklansky, “Elusive Sovereign,” 242). Offspring of the history of science, studies in this vein emphasize the ways that quantification and abstraction have profoundly reshaped the image of “the human,” creating what Dan Bouk has called the “statistical individual.” Incarnated in numbers, this creature can float freely as part of a universe of endlessly adaptable equations: where the human worker needs to occupy a certain place in the production process, the statistical individual can be plugged in far more flexibly at many points in a firm’s calculations and predictions.

*****

The other week on Twitter, Eli Cook pointed out one possible source of inspiration for a generation of historians, one reason why folks who entered graduate school from at least the mid-90s through the present might have had commodities on their minds. That source is a single chapter in a single monograph: the grain chapter of William Cronon’s Nature’s Metropolis (1991), Chapter 3. 

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.

More on TVA v Hill

H-Environment recently posted Drew Swanson's review of Zygmunt Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River (Yale UP, 2013). (A discussion of the snail darter case was posted here a few months ago.) Swanson writes:

Plater’s narrative offers several insights into both the case and 1970s environmentalism. First, the book highlights the immense complexity of these legal and political battles, walking readers through the grinding work of contacting representatives, building support networks of activists, researching cases, and filing briefs; The Snail Darter and the Dam moves much of this hidden labor out of the shadows. Second, Plater’s experience demonstrates the shoestring nature of many environmental organizations at the time. Often operating out of attics or cramped rental offices and subsisting on savings and donations from a few dedicated backers, these groups still found ways to influence the political process, and environmental historians would do well to follow Plater’s lead and pay more attention to lobbyists. Finally, the author argues for the immense importance of the media in framing environmental issues and swaying public opinion. For TVA vs. Hill, Plater is convinced that the national media’s “avoidance of complex thinking” reflected “a low opinion, apparently shared by many within Washington, of the intellectual ability and interest of the American populace” (p. 176). Once newspapers and television news defined the case as a tiny fish versus an enormous dam project, the popular case was already all but doomed.

*****

Snail darter
(USFWS Photo)

Where the book is least effective is in supporting Plater’s argument that the snail darter was more than just a tool of opportunity for dam opponents. He asserts that he and other supporters of the darter were not “hypocrites as well as fools, environmental extremists manipulating the darter to misuse the law over a technicality,” and yet throughout the book Plater admits to questioning their motives and their implications (p. 43). The issue is both troubling and refreshing for Plater’s honesty. 

Was the Lochner Court pro-environmental?

Justices of the US Supreme Court, c. 1925

In a recent post at Legal Planet, Dan Farber writes about "pro-environmental" decisions of the US Supreme Court in the Lochner era (roughly 1900-1935), on a wide range of topics: nuisance, takings, wildlife conservation, and public lands. Farber writes that "it is somewhat startling to see just how often the famously conservative Court of that time took the side of environmental protection."

Farber's post raises a host of questions:
Are these cases representative?
"Lochner revisionism" has been in full swing for a while now - does a pro-environment stance support either the traditional or the revisionist view of the era?
Are the legal doctrines invoked in the environmental cases at odds with those behind the court's decisions in areas such as labor law?
Could analyses of the court's opinions based on class, economics, or cultural factors explain the supposed discrepancies? And so on.

Farber adds a postscript:

After this was posted, I learned that Professor Kimberly Smith at Carleton College has actually written a book on the subject, which will appear in October from Kansas University Press.  As she told me, The Conservation Constitution traces how, between 1870 and 1930, the conservation movement reshaped constitutional doctrine to support expanded state and federal authority to protect natural resources. In striking contrast to the usual “Lochner Era” story, she finds that the federal courts during this period were largely supportive of conservation policy. She argues that this favorable attitude owes a great deal to the scientific reputation of the USDA and the talented group of lawyers supporting conservation policy.  I’m eagerly looking forward to reading the book.

So am I.

A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action

A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.

The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)

Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):

The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.

To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.

*****

But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.