The earth is the Lord’s
And the fullness thereof
The world and they that dwell therein
For he founded it upon the seas
And established it upon the waters.
Psalms
While countries such as Great Britain were being industrialized, the Church was being shaken to its foundation by the theory of evolution that threatened to topple the base doctrine of the creation of the earth by God. Here was a world in which the average person had lived in awe and fear of the Almighty, isolated pockets lived in knowledge of earth remedies and deeply-rooted superstitions, so to topple the theory of Creation was to tip the dominoes lined along the theological table.
It would appear from artistic and written accounts dating from the 1800’s, that prior to industrialization most western societies lived in some commune with nature and the environment. After all, why pollute a well with natural poison unless to kill the surrounding inhabitants? If they died, and the local flora and fauna were poisoned, how did that possibly benefit anyone who wished to reside, profit, or partake from that area? Simply put, it did not. To pollute nature is to pollute oneself. It was a form of both physical and spiritual suicide. So to remove the mantle of Creationism from the spiritual psyche of the Church back then was as tantamount to us today as destroying the ozone layer.
I introduced Joel Brenner’s article because to go into the world he describes is a whole new adventure. He described a Great Britain of 150 years ago when one could virtually hear the birds singing and the creeks babbling through his pages. So pristine must have been the beauty of nature during those years before the onslaught of industrialization that the population from the top down was baffled as to how changes were handled. Brenner takes the birds-eye view that environmental concerns and issues of public health were overshadowed by the protection of private property rights for landowners. There was a legal outlook applied when one individual sued another but the principle failed when a factory was brought before the court by an individual:-
While some if not all of the judges were ready to see that persons did not ruin their neighbors’ amenity in the name of convenience, they were not willing to extend a similar protection to persons suffering personal discomfort from industrial nuisances. The dearth of reported nuisance actions against factories suggests that this dual standard has been long operating…
At the risk of oversimplifying what is an ornate legal discussion, I wish to abridge the conversation for the reader who is not necessarily deeply schooled in legal thought. Way back in the 1200’s and even as far as the 1600’s, the courts in Great Britain easily managed disputes between neighbor to neighbor. Decisions were handed out (according to Brenner’s argument) in cursory fashion. Joe Blow lives in “exclusive possession” on his land and his neighbor, John Smith, lets his cows loose by accident or design. No excuse. Pay Joe Blow something for his trouble. That sort of judicial decision went on forever. If Joe Blow was just visiting family and something happened to him on his sister’s property, he would hardly have the nerve to approach any court unless he had been virtually killed, severely injured or his personal property (like his horse) destroyed in a rash manner! So this whole legal arena is what is considered the doctrine of private nuisance law. Private because you have standing before the court as an individual, and in almost every case because either the land is yours or you have suffered personal damage.
There was a long gap before the challenge of industrialization hovered on the horizon of the courts. Brenner reveals, “while the black-letter law changed little, the field of its applicability became relatively narrower.”[2] The population growth was phenomenal in the cities with factories so that “the pace of industrialization in England was by nineteenth-century standards extremely rapid and that an attendant consequence was the pollution of the air and water.”[3] While it is very tempting for me to trail through the case law decisions, I will leave that to reader who is interested to review on their own. What interests me most, though, is the parallels drawn forth by both Brenner and Sax where government involvement by means of statutory authorization of public and quasi-public enterprises operates to “bite the hand that feeds it.” In other words, one arm of government is not carrying out a duty of care on behalf of the public when it passes Acts of Parliament omitting to protect public resources or drafting those acts so vaguely as to allow loopholes for developers to dive out of the legal mix when things get hot! The other arm of government is meanwhile in the unenviable position of having to create doctrinal gymnastics in utilizing existence case law (if any exists at all!) to protect public resources. And, lastly, the most muscled of all government arms (the executive) is often the culprit.
Sax and Brenner have both shed light on the role of the courts. In the case of Sax, he takes the powerful Massachusetts court decision in the famous case, Gould v. Greylock Reservation Commn., 350 Mass. (1966), and attempts to show how groups in Maryland and Virginia applied the improved strength of the doctrine. In any case, there were a few questions that the court had to ask in determining whether public resources were being whittled away in the interest of private development. I have paraphrased these questions accordingly[4]:-
- Is the profit turnover extremely high to the point of commercialistic?
- Is the land being sold which was formerly for the enjoyment of the many to the commercial profit of the few?
- Is an aquatic resource being converted to housing (which could be done elsewhere)?
- Is the State unable to get an appropriate value on the resources it is selling to the private group?
- Are State agencies in one corner of government filing objections that are being ignored by a more powerful State agency in another corner.
To put it plainly, these considerations are at the root of public trust doctrine. And any attempt by the legislature to pass an Act, a Bill, or a Statute granting away public resources, should take these into consideration. The Massachusetts approach “could thrust the project back to the legislature where the project’s proponents would have to contend with wide public knowledge,”[5] and this of course means votes or no votes for politicians!
We have already looked rather closely in Part II at what happens when the public resources are actually granted via statute. These scenarios paint a picture of what happens when the State is acting as trustee of public resources. What Brenner attempts to do in his article, though, is to demonstrate the advantages of owning property where the courts are concerned with private or public nuisance law. He explains the private nuisance cases where once you were in exclusive possession, you had standing. In public nuisance cases, the wealthy landowners could afford to approach the court but even they lost most often to economic interests in the wider community because factory owners and their subsequent generation of wealth both monetary and physical, benefited society so greatly the courts were hesitant to put them out of business. Whole towns and communities were employed at these places where the side effects of pollution were severely compromising basic environment standards of the air and water. The reports of lakes, creeks, sewer systems and cities by Brenner’s evidence are grim, to put it mildly.
The British government finally sent out commissions to explore the environmental degradation and found itself having to address the problem by legislating very specifically, area by area. Challenges to the legislation were often, again, the reality of employment in factory settings. Administrative challenges to the executive were often the reality that statutes enacted in the past had to be updated and amended to suit the changing needs of society. Statutes needed teeth to deal with emission levels, pollution testing, and so forth. The overarching tendency was for private individual rights to pale in the face of big business. Brenner argues that private property rights gave big business the rights to degrade, However, I argue that collectivism of “the greater good,” considerations of the need for employment and the production that factories brought, were themselves overshadowing the rights of the individual in the society of Great Britain. The ‘small’ citizen did not easily factor into the equation. Private individuals did not have an easy time establishing before the court an issue of standing in public nuisance cases. Usually, it required a courageous, wealthy and educated landowner to agitate for an Attorney-General’s injunction, or as Sax describes it where Redwoods National Park was established and dam-building in the Grand Canyon was blocked:-
Sometimes, to be sure, the objectors in a community are alert and highly organized and make their views known very clearly.[6]
Everyone studying, or practicing, law knows that the most important case involving public nuisance is St. Helen’s Smelting Co. v. Tipping (1865). [7] The relevance of this case to my discussion is on a level of private property, the rights of wealthy individuals and the tendency of the courts to lean towards a sort of collectivism where big business is allowed to overshadow small business, as it were. The plaintiff was a landowner of some 1300 acres whose property (flora, fauna and water) were being decimated to the point that even government had been documenting the area around the Smelting Company. This was before the slew of steady legislation had been created in Great Britain. The court in a steady stream of decisions ruled that only if the value of the property was diminished, could Tipping have a chance to win his day in court. All the legal discussion I have seen on this case demonstrates the court’s favoritism displayed for big business. I see the landowner as a representative of small business, however regardless of one’s outlook, it is agreed that this case dealt a blow to the local psyche, resulting in a decreased number of private persons approaching the court in actions for public nuisance:-
If a man of substance such as Tipping could not win in nuisance except for actual physical damage of his property, then a lesser man was unlikely to make out at all against an industrial opponent…[d]amage to the occupier’s health and comfort was no longer a property injury per se.[8]
Brenner goes on to describe the ongoing governmental attempt to document what was going on in these areas in order to handle any coherent approach to legislation. What The Royal Commission on Noxious Vapours was discovering in 1878 was a paradox: that in areas where pollution was highest, the land value was rising and tenant rents were steadily increasing![9] It shows us that people will continue to struggle and live in places where they can make a salary even if their health is at risk and even if they have to pay enormous rents. In fact, this urbanization phenomenon is occurring worldwide. People live in high-stress areas where they can make cash rather than retreat to the countryside or rural communities where life is slower and tangible wealth not readily available.
This example of Mr. Tipping gives any caring government a lodestar to gaze forth and ponder: can protection of citizens’ environment be carefully crafted into statutes without destroying the economy? Do repeated court decisions in favor of big government work to steadily destroy a strong, healthy middle class? Do issues of health and environment eventually fall upon the government in any event when the middle class erodes and is unable to pay for dignified health care? The swift rate of development in Great Britain in the 1850’s gives developing countries a nice model to explore in facing fast-paced development where the environment and public resources are at risk of being overlooked!
That is the consideration of government. Where can the Church look for answers in a world where this is no God, no Creator, no Higher Source of justice and power recognized in the spheres of intelligentsia and global power? This is one big whammy!
I began to ask myself in reading Brenner’s piece, what on earth was the church doing in Great Britain at that time? I pulled out my favorite book, God’s Peoples, produced by Billy Graham Ministries and found something of a beginning in the story of Methodism:-
Eighteenth-century England was in the middle of the Industrial Revolution. Men and women who had been driven off the land by the earlier Agricultural Revolution swarmed into the cities to compete for jobs. Those who were fortunate enough to find work toiled from sunup until sundown, falling exhausted and filthy into their beds as soon as they got home to snatch a few hours of sleep before they had to get up for the next day’s work. On Sundays, the only day they had off, they were too dirty and too poor to be comfortable in an Anglican church. Wesley’s outdoor preaching reached and converted these people. Revival swept England, churning out itinerant Methodist circuit preachers…who did have a burning zeal for Christ and the unsaved.[10]
Nearly 100 years later, Charles Darwin publishes Origin of the Species (1859) “which challenge[d] both the Christian view of humanity and the Enlightenment emphasis on human reason and individual dignity,[11]” through free choice rather than natural selection. This work had a profound influence in academic spheres and has survived even to this day.
The church in Great Britain at this time “was ill-prepared for these changes…The Sunday school movement began as an effort to teach literacy to children who worked in factories the rest of the week; the Bible was the text.”[12]
It is around this time that Western Christians in Great Britain and America diverged into two paths: the evangelicals and the liberals. Both are Protestant arms. To confuse them with either Catholicism or the Anglicans is a fatal intellectual error in discussing the modern church.
This is where, in my opinion, the church must explore our role in a discussion of environmental protection. We must really dig for the ideas that set the stage for this fork in the road. It is more than the Creation/Evolution divide, in my opinion. However, as citizens of any democratic country, we must work within the constraints of the legal environment available to us. That is why I have taken this path of unraveling my experience of studying public trust doctrine (U.S. law) and private and public nuisance doctrine (U.K. law). I feel they are cousins of the Commonwealth historical development and can be beautifully utilized in protection of the environment while taking economic considerations into account.
As for who “owns the world,” and the passage of the Psalms given at the very beginning of this article, maybe that will never be answered in academic circles, in lines of black and white. But if you look outside your window, sit by the seaside hear a bird singing, or watch a dog curled up in the garden, remember that these beauties are gifts.
Brenner, Joel L., Nuisance Law and the Industrial Revolution, The Journal of Legal Studies, Vol. 3., No. 2, June 1974, pp. 403-433 at p. 412-413.
[2] Ibid., p. 408
[3] Ibid.
[4] Sax., Joseph L., “The Public Trust Doctrine,” Michigan Law Review. January 1970. Volume 68, pp. 470-566 at pp. 502-504.
[5] Ibid. 505
[6] Ibid. pg. 496
[7] 11 England Rep. 1483, 11 H.L. Cas.642, at 642-44, 4 B.&S. 608.
[8] Brenner, Joel L. at pp. 419-20.
[9] Ibid., 420.
[10] Spickard, Paul R., Cragg, Kevin M., God’s Peoples: A Social History of Christians.© 1994, Baker Books, (Contributing authors: G. William Carlson, Michael W. Holmes, James E. Johnson, Cornelius H. Lettinga and Roger E. Olson).
[11] Ibid. 349.
[12]Ibid. 284.
 |
Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega. |
| For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com | |
