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.

Read more »