The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements

Date01 June 2013
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00619.x
Published date01 June 2013
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 2, JUNE 2013
ISSN: 0263-323X, pp. 173±98
The Common Law Clean Up of the `Workshop of the
World': More Realism About Nuisance Law's Historic
Environmental Achievements
Ben Pontin*
This article examines the environmental benefits arising from com-
pliance with common law nuisance injunctions during the British
industrial revolution. It argues, based on the outcomes of industrial
nuisance actions involving all egations of serious air and river
pollution, that many millions of pounds were invested by corporate
polluters in designing and implementing clean technologies within the
framework of the common law. Nuisance law was not an unqualified
success in the field of environmental protection at this time, but overall
the findings contribute to the on-going critique of the nuisance law
histories of Brenner and McLaren, which argue that various limita-
tions of the common law are at the root of modern environmental
problems. The discovery of historic practical measures of environ-
mental protection through common law enforcement raises important
conceptual, policy, and legal questions for today, and disciplinary
questions regarding the rigour of realist legal scholarship concerning
the historic performance of the law.
I. INTRODUCTION
Writing in close proximity to the booming oil wells of 1950s Texas, the
leading American legal realist Leon Green urged tort scholars to examine the
`environmental facts' surrounding the impact of the common law on society
(and the impact of society on the common law).
1
One of the most ambitious
173
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Bristol Law School, University of the West of England, Frenchay Campus,
Coldharbour Lane, Bristol BS16 1QY, England
benjamin.pontin@uwe.ac.uk
I am grateful to Professor Maria Lee for her helpful comments on an earlier draft, and for
the comments of the anonymous peer reviewers.
1 L. Green, `Tort Law ± Public Law in Disguise' (1959) 38 Texas Law Rev.1, 3 ff.
Green's reference to the environment is not specifically confined to nature but,
realist projects of this kind has involved North American scholars engaging
with the neighbourhoods of the first industrial nation (Britain) in search of a
historical explanation based on the failings of nuisance law for the origins of
modern environmental problems.
2
Joel Brenner's formative study attributed
the failings of nuisance law to the English judiciary's covert bias in favour of
industrial enterprises in their disputes with victims of nuisance during the
second half of the nineteenth century.
3
John McLaren agrees that judges did
on occasion side with polluters, but argues that the deeper problem was that
of the institutional limitations inherent in any attempt to protect the
environment through tort litigation.
4
In recent years it has been suggested that Brenner and McLaren exag-
gerated nuisance law's doctrinal and institutional weaknesses.
5
For example,
Brian Simpson described the acid rain action of Tipping v. St Helens
Smelting (which is much maligned in the accounts of Brenner and McLaren)
as a `triumph' in its defence of the agrarian strict liability conception of sic
utere tuo in the face of industry arguments for concessions.
6
Similarly, in the
174
rather, denotes a concern with the wider context of the law, thus linking with Karl
Llewellyn's call for academic lawyers to `become interested again in the life that
swirls around things legal' (K.N. Llewellyn, `Some Realism about Realism' (1930)
44 Harvard Law Rev. 1222). For examples of the study of environmental facts in the
field of contemporary nuisance law, see R.C. Ellickson, Order Without Law: How
Neighbours Settle Disputes (1991), in which the author `venture[s] out into the
world to learn about how neighbours actually interact with one another' (p. vii); and
W. Farnsworth, `Do Parties to Nuisance Cases Bargain After Judgment? A glimpse
inside the cathedral' (1999) 66 University of Chicago Law Rev. 373.
2 J. Brenner, `Nuisance Law and the Industrial Revolution' (1974) 3 J. of Legal
Studies 403; J.P.S. McLaren, `Nuisance Law and the Industrial Revolution: Some
Lessons from Social History' (1983) 3 Oxford J. of Legal Studies 155; N. Morag-
Levine, Chasing the Wind (2003); T. Golan, Laws of Men and Laws of Nature: The
History of Expert Testimony in England and America (2004).
3 Brenner, id., p. 408.
4 McLaren, op. cit., n. 2, pp. 159, 170. Perhaps the fundamental limitation identified
by McLaren is the `voluntarism' of the law, by which is meant the `willingness of
those who feel that their rights have been infringed to pursue the matter to resolution
by a court' (p. 205).
5 See B. Pontin, `Nuisance Law and the Industrial Revolution: A Reinterpretation of
Doctrine and Institutional Competence' (2012) 75 Modern Law Rev. 1010; A.W.B
Simpson, Leading Cases in the Common Law (1995) ch. 7; B. Pontin, `The Secret
Achiev ement s of Nine teenth C entur y Nuisa nce Law : Attor ney-Ge neral v
Birmingham Corporation (1858±1895) in context' (2007) 19 Environmental Law
and Management 271; P. Desrochers, `Victorian Pioneers of Corporate Sustain-
ability' (2009a) 83 Business History Rev. 703; P. Desrochers, `Does the Invisible
Hand Have a Green Thumb: Incentives, Linkages, and the Creation of Wealth out of
Industrial Waste in Victorian England' (2009b) 175 Geography J. 3, 12. For a
revisionist analysis of the politics of the nineteenth century which is relevant to
nuisance law (without explicitly addressing it), see H. Ritvo, The Dawn of Green:
Manchester, Thirlmere and Modern Environmentalism (2008).
6Tipping v. St Helens Smelting (1865) 11 HL Case 642; Simpson, id., p. 192. See,
further, Pontin, id. (2012): the law accommodated the needs of victims of
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT