Environmental Law and Agents of Profit Through History
ARTICLE by Molly Wancewicz
VOLUME VIII ISSUE I
From the European colonization of North America to Nixon-era regulations of toxic chemicals, the legal system persists as an integral part of United States’ environmental history. Throughout this history, the legal system has been closely intertwined with profit by supporting resource extraction and other economic activities. However, in the 20th century, the law became a battleground between regulation and profiteering.
I. Colonial Period: Environmental Exploitation for Profit
The interaction between the legal system and the environment emerged in the 16th and 17th centuries when European powers began settling North America. European colonization of the Americas was fundamentally rooted in the pursuit of profit. Notably, colonists pursued wealth by establishing charter companies centered around agriculture, as well as trapping and trading furs, both of which required the acquisition of significant expanses of land.1 To justify their extraction of profit from the natural environment, colonists frequently weaponized the legal system. For instance, in early New England and Chesapeake settlements, colonists held the legal system as a body called upon to justify their claims to newly occupied land. In 1738, British colonial leader William Bull asserted that the British possessed the right to occupy Carolina due to military conquest and historical claims, writing that, because the land was conquered in war and because no other European nation possesses the land, Britain had the “best right” to the territory.2 While Bull did not appear in a court of law to defend the British claim to the land, he invoked sworn affidavits and used legally accepted evidence and customs of international law—such as the principle that conquering land by force establishes
ownership—to bolster British claim to Carolina.3 British colonists seeking to establish rights also used the legal system to protect their claims to the lands they hoped to colonize. The arguments of Roger Williams, the founder of Rhode Island, exemplify this trend. To defend the legality of Salem’s territorial holdings, Williams argued that “in order for Indians [to] legitimately to sell their lands, they had first to own them.”4 Colonists did not consider Native Americans owners of tribal land because they conceptualized property differently inndigenous tribes. Native Americans distinguished between hunting land and other land, and they based allocation of property on resource distribution, not the “first come, first served” principle utilized by colonists.5 In addition, New England settlers built fences encircling individual properties they believed they had conquered, seeking to establish “a superior, civil right of ownership.”6 The settlers’ assertion of a civil right to property represents another manner in which legal reasoning backed colonial ownership claims. In both cases, colonists sought to maintain their claims to the land in order to extract profit.
II. Chattel Slavery: an Evolution of Exploitation
The legal system served as the cornerstone of European profit off of the North American environment as they forced enslaved laborers to extract resources from the land. Chattel slavery that exploitted African slave labor served as the basis for plantation-style production of certain staple crops. Cotton plantations, for instance, eroded up to three- fourths of the natural topsoil in some areas.7 In an 1839 letter, Frances Anne Kemble, a well-known British writer, noted that the land was “exhausted by the careless and wasteful nature of the
agriculture itself, [which] suggests a pretty serious prospect of declining prosperity.”8
Additionally, many Americans futher dehumanized slaves by conceptualizing them in terms of profit, with 19th-century sources linking slavery to the efficiency of crop production. In 1861, landscape architect Frederick Law Olmsted described slaves in terms of hands, or units of labor.9 Olmsted also evaluated the productivity of the fields, drawing a connection between slave labor—which was counted in blunt and faceless terms—and agricultural production.10 However, years of environmental degradation ensued after Olmsted’s and Kemble’s writings. Despite arguments that slavery violated natural law and positive law, chattel slavery did not end until the 1865 ratification of the Thirteenth Amendment.
III. Gold Rush Period: A Legal Turning Point
During the legal battle over slavery, a struggle over rights and resource extraction occurred elsewhere in the U.S. In the American West, the legal system intensified ambiguity over water rights during the California Gold Rush. Water was necessary for both hydraulic gold mining and the survival of mining communities, which were often separated by large amounts of arid land.11 Water evolved from being simply an environmental resource to an essential tool for the extraction of value from the environment. As water became a hotly contested resource, an unprecedented tension emerged between laws governing water use and those seeking to use water to profit from gold.
Water rights served as a turning point in American environmental law’s relationship to profit. For the first time, an adversarial relationship developed between the two entities. Undergirding this turning point was the evolution from riparian water rights12 to appropriative water rights,13 a shift best exemplified in California. Most legal conflicts over water rights during the Gold Rush occurred at the local and state levels, as the looming Civil War prevented the federal government from evaluating or regulating the natural resources of newly acquired California.14 Conflict over water began because both common law and the 1850 California constitution implied that California would use riparian law to govern water use.15 Beginning in the 1820s, however, legislation passed that contradicted the riparian rights and instead established prior appropriation water rights.16 The California Supreme Court established a new conception of water rights in its 1886 ruling in Lux v. Haggin.17 In Lux, the court ruled in a 4–3 decision that although riparian rights would remain superior to appropriative rights in the event of a conflict between the two types of rights, appropriative rights would continue to have legal standing.18 The court’s opinion also established that, in disputes between parties both claiming riparian rights to the same water, the concept of appropriate use would determine who had the right to the water.19 Similarly, in Irwin v. Phillips (1855), the plaintiff asked the California Supreme Court to rule on the legality of the “first-in-time, first-in-right” principle.20 This gold miners’ custom of resolving conflicting claims to water and gold constituted prior appropriation. The court held that because the miners’ principle was commonly accepted, prior appropriation would be considered state law. Though
riparian rights were still valid under common law, appropriative rights gained legal recognition and would eventually become the accepted doctrine of water rights.21
With a backdrop of changing water rights, the California legal system established some of the earliest environmental protections in the U.S. In the latter half of the 19th century, most gold that had been washed downstream was panned from rivers, so profit-driven gold miners began using hydraulic mining to extract gold from the ground. While hydraulic mining yielded profits to the tune of $5.5 billion,22 it wrought vast environmental consequences. Hydraulic mining entailed diversion of water from streams into flumes and penstocks to create hydraulic pressure. Miners blasted the pressurized water into rock and sifted through the massive piles of resulting debris to find gold. Millions of acres of debris generated from this process choked rivers, smothered fields and orchards, and increased flooding.23 In two 1884 cases,Woodruff v. North Bloomfield Mining Co. and People v. Gold Run Ditch & Mining Co., judges decisively ruled that “hydraulic mining constituted a general and destructive public and private nuisance that must be halted.”24 These court rulings constituted an early form of environmental regulation that directly interacted with profit. However, much of each judge’s reasoning was based on the fact that the disruption to the environment negatively impacted agricultural capabilities, suggesting that even the courts’ establishment of regulations took motives of profit into consideration.25
IV. The Evolution of Regulation
The environmental movement built upon regulations established during the conservation movement. The National Environmental Policy Act of 1969 (NEPA), which required federal agencies to submit environmental assessments and environmental impact statements for proposed projects, cemented national
environmental protections for the first time.26 A flurry of additional environmental legislation followed, including the 1970 Clean Air Act, the 1972 Clean Water Act, and the 1973 Endangered Species Act, which governed air quality, restricted water pollution, and protected critically imperiled species, respectively.27 During this time, profit again stirred conflict between capitalists and the law.
The battle over regulation of damaging substances, such as diethylstilbestrol (DES), highlights the widespread conflict between profit and environmental law. DES is a synthetic estrogen initially prescribed to women for a variety of medical conditions and later used as a food additive to increase the size of cattle for slaughter.28 In 1971, a study linking DES to cancer placed immense public pressure on the Food and Drug Administration (FDA) to regulate DES, especially its use in beef.29 The preponderance of scientific evidence led the FDA to apply the Delaney Clause, a provision in the Food Additives Amendment of 1958 that bans cancer-causing agents from being used as food additives,30 to ban DES in livestock feed. Feed companies then filed suit against the FDA, arguing that there was insufficient evidence that DES was a public health hazard.31 The U.S. District Court of Appeals for the District of Columbia overturned the FDA’s ban on the grounds that the FDA had not appropriately considered economic issues, requiring that the FDA first conduct a “quantitative risk assessment that weighed the economic benefits of DES against the economic costs of cancer.”32 Feed companies’ use of the legal system to challenge environmental regulation constituted a battle between
profit and environmental regulation. Capitalistic motives were heavily intertwined within the legal system; the court ruled that the FDA had to regulate based on economic reasons, not public health, which reflects the influence of corporate interests within the law. Companies sought to protect their profits from new environmental regulations by filing lawsuits, creating a “regulatory and judicial logjam” that “kept most toxic chemicals from regulation.”33 In addition to federal regulations, “toxic torts,” or personal injury lawsuits alleging “exposure to a chemical caused injury or disease,” proliferated throughout the 1970s.34 Companies fought back by inserting themselves into all possible court cases through means such as filing briefs to “convince juries that toxic torts were unfounded.”35
Beyond toxic chemical regulations, companies and industries also fought back against legal proceedings related to construction projects. In the early 1960s, the City of Houston, Texas, pursued the construction of the Lake Livingston Reservoir by diverting the Trinity River.36 The project aimed to increase Houston’s water supply so the city could provide for domestic water use while meeting commitments to industry actors, including petrochemical companies.37 However, a lawsuit filed by a group of citizens in December 1962 temporarily halted the reservoir’s construction.38 During the delay, Noah Hull, Houston’s surface water supply director, and H.R. Norman, an engineering consultant for the city, publicly called for the project to resume.39 They characterized the lawsuit as frivolous, emphasizing how it was filed by “a small group” of people “as a result of complaints on high water bills.”40 Subsequent lawsuits regarding similar projects, such as the 1971 suit filed by the Sierra Club against
the Trinity River Authority and the City of Houston, suggest that the 1962 plaintiffs voiced significant concerns about the reservoir’s environmental impact.41 After their brief analysis of the lawsuit’s claims, the city and industry representatives spent several paragraphs extolling the reservoir project’s economic benefits, emphasizing how much additional water the project would bring to Houston. Clearly, the legal conflict was fundamentally rooted in motives of profit.
V . Conclusion
Throughout the past four centuries of American history, the legal system has fluctuated between protecting the sanctity of the environment and advancing economic interests, often revealing conflicts between the two. Its role evolved from an abstract source of justification to an often-used method of arbitration and environmental regulation by activists and industry representatives alike. For centuries, the interaction between the legal system and the environment governed the way people interact with natural resources. Over time, however, the law has evolved from being a tool justifying extraction of profit from the environment to a tool of regulation that systematically conflicts with agents of capitalism.
1 U.S. Department of State, Colonization of the United States, TʜᴏᴜɢʜᴛCᴏ. (Sept. 1,
2 William Bull, Representation of President William Bull to Council of Trade and
Plantations. Charleston, Tʜᴇ Cᴀʟᴇɴᴅᴀʀ ᴏꜰ Sᴛᴀᴛᴇ Pᴀᴘᴇʀs, Cᴏʟᴏɴɪᴀʟ: Nᴏʀᴛʜ Aᴍᴇʀɪᴄᴀ
ᴀɴᴅ ᴛʜᴇ Wᴇsᴛ Iɴᴅɪᴇs 1574–1739, 10 (1860).
3 Id. at 6, 10.
4 Id. at 6, 10.
5 Andrew P. Morriss, Europe Meets America: Property Rights in the New World,
Fᴏᴜɴᴅᴀᴛɪᴏɴ ꜰᴏʀ Eᴄᴏɴᴏᴍɪᴄ Eᴅᴜᴄᴀᴛɪᴏɴ (Jan. 1, 2007), https://fee.org/articles/europe-
6 Wɪʟʟɪᴀᴍ Cʀᴏɴᴏɴ,Cʜᴀɴɢᴇs ɪɴ ᴛʜᴇ Lᴀɴᴅ: Iɴᴅɪᴀɴs, Cᴏʟᴏɴɪsᴛs, ᴀɴᴅ ᴛʜᴇ Eᴄᴏʟᴏɢʏ ᴏꜰ Nᴇᴡ Eɴɢʟᴀɴᴅ 56 (1st ed. 1983).
7 Rᴏɢᴇʀ G. Kᴇɴɴᴇᴅʏ, Mʀ. Jᴇꜰꜰᴇʀsᴏɴ's Lᴏsᴛ Cᴀᴜsᴇ: Lᴀɴᴅ, Fᴀʀᴍᴇʀs, Sʟᴀᴠᴇʀʏ, ᴀɴᴅ
ᴛʜᴇ Lᴏᴜɪsɪᴀɴᴀ Pᴜʀᴄʜᴀsᴇ 233 (1st ed., 2003).
8 Fʀᴀɴᴄᴇs Aɴɴᴇ Kᴇᴍʙʟᴇ, Jᴏᴜʀɴᴀʟ ᴏꜰ ᴀ Rᴇsɪᴅᴇɴᴄᴇ ᴏɴ ᴀ Gᴇᴏʀɢɪᴀɴ Pʟᴀɴᴛᴀᴛɪᴏɴ ɪɴ 1838–1839 218 (John A. Scott ed., Brown Thrasher ed. 1984).
9 Frederick Law Olmsted, Frederick Law Olmsted Describes Cotton Production and
Environmental Deterioration, 3 Mᴀᴊᴏʀ Pʀᴏʙʟᴇᴍs ɪɴ Aᴍᴇʀɪᴄᴀɴ Eɴᴠɪʀᴏɴᴍᴇɴᴛᴀʟ
Hɪsᴛᴏʀʏ, Jᴏᴜʀɴᴇʏs ᴀɴᴅ Exᴘʟᴏʀᴀᴛɪᴏɴs ɪɴ ᴛʜᴇ Cᴏᴛᴛᴏɴ Kɪɴɢᴅᴏᴍ: A Tʀᴀᴠᴇʟʟᴇʀs
Oʙsᴇʀᴠᴀᴛɪᴏɴs ᴏɴ Cᴏᴛᴛᴏɴ ᴀɴᴅ Sʟᴀᴠᴇʀʏ ɪɴ ᴛʜᴇ Aᴍᴇʀɪᴄᴀɴ Sʟᴀᴠᴇ Sᴛᴀᴛᴇs 222 (Carolyn
Merchant ed., 1861).
11 Douglas R. Littlefield, Water Rights During the California Gold Rush: Conflicts Over Economic Points of View, 14 W. Hɪsᴛ. Q. 415, 415–34 (1983).
12 Under riparian law or riparian rights, water belongs to the people living on the
banks of bodies of water.
13 Under appropriative water rights, also called prior appropriation, the first person to
use a water source productively has the right to that water.
14 Littlefield, supra note 12 at 419.
15 Jessica B. Teisch, Miners versus Farmers in California, in 3 Mᴀᴊᴏʀ Pʀᴏʙʟᴇᴍs ɪɴ Aᴍᴇʀɪᴄᴀɴ Eɴᴠɪʀᴏɴᴍᴇɴᴛᴀʟ Hɪsᴛᴏʀʏ: Dᴏᴄᴜᴍᴇɴᴛs ᴀɴᴅ Essᴀʏs 273, (Carolyn Merchant ed., 2012).
16 Id. at 275.
17 Eʟʟᴇɴ Hᴀɴᴀᴋ et al., Mᴀɴᴀɢɪɴɢ Cᴀʟɪꜰᴏʀɴɪᴀ’s Wᴀᴛᴇʀ: Fʀᴏᴍ Cᴏɴꜰʟɪᴄᴛ ᴛᴏ Rᴇᴄᴏɴᴄɪʟɪᴀᴛɪᴏɴ, 29 (1st. ed. 2011).
18 Charles Lux v. James B. Haggin, 69 Cal. 255 (1886).
19 Hanak et al., supra note 17 at 29–30.
20 Matthew W. Irwin v. Robert Phillips, 5 Cal. 140 (1855).
21 Hanak et al., supra note 17 at 22–23.
22 The amount refers to the current value of the U.S. dollar. 23 Hanak et al., supra note 17 at 24–25.
24 Teisch, supra note 15 at 273.
25 Teisch, supra note 15 at 273.
26 National Environmental Policy Act of 1969, 42 U.S.C. § 4321 (1970).
27 Dᴀᴠɪᴅ Sᴛʀᴀᴅʟɪɴɢ, Cᴏɴsᴇʀᴠᴀᴛɪᴏɴ ɪɴ ᴛʜᴇ Pʀᴏɢʀᴇssɪᴠᴇ Eʀᴀ 9 (University of Washington Press, 2004).
28 The Editors of Encyclopaedia Britannica, Diethylstilbestrol, Eɴᴄʏᴄʟᴏᴘᴀᴇᴅɪᴀ
Bʀɪᴛᴀɴɴɪᴄᴀ (n. d.), https://www.britannica.com/science/diethylstilbestrol.
29 Nᴀɴᴄʏ Lᴀɴɢsᴛᴏɴ, Tᴏxɪᴄ Bᴏᴅɪᴇs: Hᴏʀᴍᴏɴᴇ Dɪsʀᴜᴘᴛᴏʀs ᴀɴᴅ ᴛʜᴇ Lᴇɢᴀᴄʏ ᴏғ DES 98-100 (Yale University Press, 2010)
30 J. H. Weisburger, The 37 Year History of the Delaney Clause, 48 Exᴘᴇʀɪᴍᴇɴᴛᴀʟ
ᴀɴᴅ Tᴏxɪᴄᴏʟᴏɢɪᴄᴀʟ Pᴀᴛʜᴏʟᴏɢʏ 183, 188 (1996).
31Hess & Clark, Division of Rhodia, Inc. v. Food & Drug Administration, 495 F.2d 975 (1974).
32 Langston, supra note 29 at 107.
33 Langston, supra note 29 at 112.
34 Langston, supra note 29 at 112.
35 Langston, supra note 29 at 112.
36 Houston Needs Trinity River Water: City Water Consultant States Livingston Reservoir Needed Now, Tʀɪɴɪᴛʏ Vᴀʟʟᴇʏ Pʀᴏɢʀᴇss, October 1963, at 18.
41 Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977: Hearings on H.R. 14236 Before the Subcomm. of the Comm. on Appropriations, 94th Cong., 2d Sess (1977).