Law - Water and Air Pollution

Environmental problems have plagued human settlements and elicited legal responses since antiquity. For example, in ancient Athens, wastes were supposed to be dumped a mile from the city, and burials were supposed to take place outside the city walls. However, it is better to trace law regarding water and air pollution since the early nineteenth century.

Industrialization and urbanization increased pollution problems far beyond their customary levels in the nineteenth century. Increasing production of steel and petrochemicals, the emergence of large-scale textile, pulp and paper, and food industries, and the use of coal-fired steam engines for power also increased pollution problems. Later in the nineteenth century local and state governments began to control water and air pollution.

Water Pollution, Air Pollution, and Common Law. Industrialization and urbanization were the primary reasons for increased water pollution and air pollution in the nineteenth century. Water-powered early industrial establishments such as sawmills and textile mills were located at watercourses, and the easiest way for such establishments to get rid of wastes was to discharge them into water.

Other industrial establishments, such as tanneries, were located at watercourses because they needed water for production processes and for the convenience of waste disposal. The smelting of metals and the use of coal for heating and for operating steam engines were the primary sources of air pollution. However, the form of air pollution that most concerned people in the nineteenth century was the odor created by slaughterhouses, rendering plants that recovered fat and other materials from carcasses, and factories that made fertilizers from bones, blood, and other animal tissues.

Early industrial polluters mainly caused property damages. For example, sawmills discharged sawdust and shavings, which could be deposited on downstream riparian (relating to the banks of watercourses) land or clog the waterwheel of a downstream mill. Mines discharged acidic water that spoiled water supplies downstream. Air pollution problems were relatively limited in the early nineteenth century because of the small scale of coal use and the cleanliness of anthracite, the main variety of coal used early on.

However, increasing use of bituminous coal and the emergence of new industrial activities increased the damage done by smoke, soot, and dust to neighboring properties. Odors also interfered with the use and enjoyment of properties, but such odors were also understood to indicate health threats in the early nineteenth century.

Urbanization increased the size and density of human populations in cities. This process created problems with the handling and disposal of wastes. In the early nineteenth century human wastes were typically deposited into cesspools or privy vaults from which they seeped into groundwater, polluting the primary water supply of early urban residents.

If privy vaults and cesspools were emptied at all, their contents were dumped on vacant lots or into the nearest watercourses. This process polluted surface waters, just as the discharge of human wastes through sewers did later in the century. Pollution of surface waters by human wastes both injured private property and endangered public health.

The urban experience with regard to water and air pollution was broadly similar in Europe and North America. The United Kingdom experienced these urban environmental problems earlier and perhaps more severely than countries such as the United States, Germany and the Nordic Countries that urbanized and industrialized somewhat later.

Many developing countries are still undergoing the processes of urbanization and industrialization and facing their environmental consequences. Legal responses to water and air pollution have varied across legal systems and according to the type and severity of experienced water pollution problems. In what follows, the focus will be on the legal responses to water and air pollution in the United States from the early nineteenth century until the 1970s when the present water and air pollution control policies were established.

Exclusive focus on legal responses to water and air pollution in the United States is justified because it helps to discern trends over time. Moreover, the U.S. experience is not qualitatively different from that of other industrialized countries.

In the United States, those people whose private property was injured by water pollution or air pollution could seek damages or an injunction in the courts on the basis of tort (a wrongful act other than a breach of contract for which relief may be obtained) law. If solids such as sawdust or mine tailings physically invaded property, the owner could sue and recover for trespass.

Law of private nuisances offered remedies when there was no physical invasion but when the use or enjoyment of property was nevertheless injured by, for example, odors or smoke. Interference with riparians' use of water was actionable under riparian law.

The frequency of litigation against water polluters and air polluters increased steadily during the nineteenth century, but the outcomes of litigation varied because tort law changed several times. In the early nineteenth century the courts protected private property strictly: Even a small interference with another person's property rights was in theory a cause for awarding damages. In contrast, early courts were reluctant to grant injunctions, which required the polluter to stop polluting or to pay a price demanded by the plaintiff for a right to pollute.

In the mid-nineteenth century courts relaxed liability for accidental injuries by adopting the doctrine of negligence: Damages were now due only when the defendant could be shown to have acted negligently. The doctrine of negligence was sometimes used in water pollution and air pollution litigation when the polluters discharged wastes and used fuels intentionally. As a result, their negligence could not be shown, and they were effectively relieved from liability.

Injuries that were created by intentional action had traditionally been subject to strict liability. However, strict liability was replaced by the doctrine of reasonable use in Tyler v. Wilkinson (1827), a federal case involving several Massachusetts and Rhode Island textile mills at the falls of the Pawtucket River. Downstream mill owners complained of the injurious diversion of water by upstream mills, arguing that the upstream mills only had a right to residual water not needed by the downstream mills. This doctrine established a common right to a reasonable use of resources such as water and air.

It denied the right of other resource users to challenge minor interference with their common rights. A few decades later, the doctrine of reasonable use was transformed into a balancing test in two influential cases. In the Vermont case of Snow v. Parsons (1856), a downstream mill owner complained that his waterwheel was clogged by the bark discharged from an upstream tannery. In the New Hampshire case of Hayes v. Waldron (1863), a downstream riparian landowner complained that the shavings and sawdust discharged from an upstream sawmill were deposited on his land.

The courts of these two cases adopted a balancing test which compared the value of competing uses of environmental resources and endorsed the more valuable one as a right. These changes in tort law favored emerging industry and reflected the priority of industrial development over other concerns. As a result, ordinary property owners could hardly prevail if they complained of industrial pollution.

Industrial development resulted in the emergence of powerful corporations by the end of the nineteenth century. The courts were now more willing to find for those who challenged the actions of industrial polluters because public opinion had turned against big business. The courts also knew by this time that industrial polluters could often abate their discharges at a relatively low cost. Moreover, the courts started to issue injunctions more frequently.

For example, in the New York case of Whalen v. Union Bag and Paper Co. (1913) the court awarded damages and an injunction to a riparian landowner who had been injured by the discharge of effluents by an upstream paper mill. The riparian landowner refused to bargain with the paper mill, which was either unable or unwilling to abate its discharges and ultimately closed. The granting of injunctions was even more common in litigation over municipal sewage discharges, and comparable cases were litigated over air pollution as well.

However, despite changes in tort law in the late nineteenth-century, it remained a weak tool for controlling air pollution and water pollution. It could be used only for the protection of private property. Moreover, each plaintiff had to weigh the costs of litigation against prospective benefits from damages or an injunction when deciding whether to sue. Also, the award of damages or an injunction did not necessarily translate into improved environmental quality.

The primary purpose of common law (the body of law developed in Britain primarily from judicial decisions based on custom and precedent) remedies was to restore the value of injured property rights. They altered the behavior of polluters only if abating discharges or discontinuing the polluting activity was less expensive than compensating the injured parties or buying them off.

In addition to creating disputes over property rights, water pollution and air pollution endangered health and thus provided a cause for public nuisance action. Public nuisance was anything that injured the private property of many people; harmed public rights, such as the right to navigation; or endangered public safety, health, or morals.

A public plaintiff, such as the attorney general or an authorized body of the local government, usually initiated a public nuisance suit. However, a suit could also be initiated by individuals who had suffered a special injury, different in kind and not only in degree, from that suffered by the public. Early public nuisance suits were indeed often initiated by private plaintiffs, whereas public plaintiffs were reluctant to do so to abate water pollution or air pollution before the 1860s.

The protection of health by privately initiated public nuisance suits rested on the prevailing understanding of disease. Early nineteenth-century beliefs still associated disease with low morals and God's punishment for sins: Protection of health was a private matter best addressed by prayer and religious devotion.

Whereas low morals and sin were thought to predispose one to disease, certain climatic and topographic factors, putrefaction, and odors or miasmas (vaporous exhalations believed to cause disease) indicated an immediate health danger. Epidemiological studies by the British reformer Edwin Chadwick (1800-1890) and the British physician John Snow (1813-1858) and sanitary surveys conducted in Europe and the United States transformed these beliefs in the mid-nineteenth century by establishing the association of disease with environmental degradation and raising health to the public agenda.

Still, the exact cause of diseases eluded both medical experts and laypeople until the 1880s, when the bacteriological theory of disease started to gain acceptance.

The early beliefs about the origins of disease had important consequences for legal responses to water pollution and air pollution. Public nuisance suits were frequently brought against those persons engaged in slaughtering, rendering, and fertilizer production until the last quarter of the nineteenth century. The borderline between air pollution and water pollution was also often thin, if it existed at all.

Namely, polluted water was often malodorous and thus considered a health threat. For example, millponds stank because organic wastes carried by water from upstream settled on their bottom and because microbes thrived in their nutrient- rich and shallow waters. Indeed, stinking millponds were the most frequent reason for public nuisance suits such as the New York case of Mills v. Hall (1832) and the Massachusetts case of City of Salem v. Eastern RR Co. (1868) in the early nineteenth century.

Plaintiffs most often brought public nuisance suits during epidemics. The number of cases and the decisions of those cases litigated in the United States around the 1832 and 1866 cholera epidemics indicate that courts were receptive to the arguments of the plaintiffs during epidemics. Public interventions in water pollution and air pollution became more common after the mid-nineteenth century, when the connection between environmental degradation and disease had been established.