Water Legislation Origins of Environmental Law Dissertation

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Water Legislation

Origins of Environmental Law in Canada and the United Kingdom

Humans have been stewards of the earth since at least the era in which they settled down into semi-permanent and then permanent farms. This does not, of course, mean that our species has been always provided good stewardship of the earth; rather it is the case that when humans ceased to be nomadic and connected themselves to a specific place, they began to make the connection between their own activities and the condition of the land around them. It was also at this point in human history that humans began to be aware of the issues surrounding their collective use of water. As soon as humans became settled and began to cultivate crops, they also became dependent on a steady supply of water for their crops and animals as well as for the numerous activities for which humans use water every day, from drinking to cooking to bathing.

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Humans understood that their actions could affect the earth in ways that would prove to be detrimental to people from the beginnings of civilization. How people chose to respond to this knowledge has varied considerably. In early human communities with stable governments (and especially where environmental resources were limited), water was regulated so that there was a relatively steady supply of clean water, assuming that nature was at all cooperative. In other places, communities were devastated and even decimated by unwise use of water. Indeed, it is possible that laws regarding the use of water and the protection of its cleanliness were probably among the first of all laws: There are injunctions about keeping sewage out of clean water sources in the Old Testament.

Even before this, the very first laws regarding the environment were not laws at all if by laws we are referring to written codes that have governmental force behind them. Rather, like other forms of laws, what would become environmental laws would have begun as informal agreements among people such as promises not to dump food scraps upstream of another person's house.

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As societies became more hierarchical and more formal, and as settlements became more and more permanent, laws in general became primarily a means of supporting the rights of the powerful. (This differs in significant ways from current environmental law, as shall be discussed in depth throughout this paper. In general, modern-day environmental law is designed to protect those members of society with less power as well as those elements of the biome that have no voice at all in the polity, which is to say, all species other than humans.) Initial environmental laws thus probably have a significant basis in the desire of the powerful to protect their own land and property.

However, it was also true from the very beginning of semi-formal agreements and formal laws concerning the care of the physical world that laws meant to protect the property of one person often had a beneficial effect on an entire community. Central to the nature of environmental law, of course, is the fact that all humans on earth share a common environment. One of the early slogans of the environmental movement in the United States was "We all live downstream." This is quite true: Any regulation that helps protect the health of the earth's air and water especially help in some measure to protect the environment of everyone.

Smokestacks and Death

While legal protections for the environment (whether formally conceived of as such or not) date from ancient times, modern environmental law can be dated properly from the 19th century.

This is, of course, in no way coincidental: The Industrial Revolution brought with it environmental destruction on an unequaled level, polluting air, land, and water and increasing mortality rates among humans as well as for a wide range of other living creatures. Scientists as well as politicians across the industrializing world began to realize that without regulation the earth might become so compromised that the advances brought about through industrialization might well be lost because of environmental degradation.

(a realization that we in the 21st century, of course, are still coming to terms with.) This paper examines the development of environmental law in particular as it applies to water pollution in the United Kingdom and in Canada, in particular in Ontario. This chapter focuses on the origins of such laws not simply because English common law is by definition based in historical precedent but also because the philosophical and cultural underpinnings of those first laws are still embedded in current law and no understanding of the current state (and potential future direction) of environmental law in these two jurisdictions would be complete without such an historical examination.

The Alkali Act of 1863

The first important attempt to create a legal basis for protecting the environment in the United Kingdom came about in the middle of the 19th century, most importantly in 1863, with the Alkali Act of 1863.

This act provided for five inspectors to be empowered to curb the discharges of hydrogen chloride into the air from the Leblanc alkali works. The history of this particular law (and the conditions that prompted it to be enacted) are worth examining in some detail because this legal episode has had long-lasting effects on environmental law and philosophy in the United Kingdom.

The adverse health effects of air pollution (such as increased incidence of bronchitis) were realised in Britain from around the 1840s, and several attempts were made to introduce laws to require owners of furnaces to reduce smoke emissions. These attempts were resisted by industrialists (well represented in Parliament) until industry realised that there were economic reasons for reducing pollution (that is, excessive air pollution represented wasted fuel). The first pollution control Act was the Smoke Nuisance Abatement (Metropolis) Act in 1853, although effective efforts began with the Alkali Act (1863). At the time, severe problems were experienced near industrial plants manufacturing alkalis such as sodium carbonate and sodium hydroxide: emissions included hydrogen chloride, which was converted into hydrochloric acid in the atmosphere, causing extensive damage to vegetation. The Alkali Act required that 95% of the emissions should be arrested, and the remainder diluted. This simply meant passing the acid vapours through water, but this had a dramatic effect: prior to the Act, emissions from Alkali works were almost 14,000 tonnes annually, but after it came into force this was reduced to only 45 tonnes.

While the focus of this paper is on the topic of water pollution, this section on the historical basis of environmental law focuses on air pollution simply because air pollution was historically the first form of environmental degradation and pollution to be addressed.

And while the complete chemistry of air pollution is complicated, and made even more so when one adds to the equation the dynamics of weather systems, even by the first decades of the Industrial Revolution people were aware of possible solutions, or at least possible partial solutions. Among the earliest solutions to air pollution in cities in the United Kingdom was to build taller smokestacks.

Similar trends had already occurred within industry: in the 19th C, most industries generated their own power from coal, and this changed as centrally generated power took over. Pollution from industrial processes (e.g. chemicals, metal smeting, paper production), however, continued to be generated by factories. Legislation was effective in reducing black smoke (particulates), and local acidification by setting minimum heights for stacks. However, long-distance air pollution and acid rain were actually increased by the tall stacks policy.

While this simply boosted the particulates into the upper layers of air where they were still harmful (especially as they were caught by winds and precipitation and returned to the earth's service), they alleviated some of the worst symptoms of those in the immediate areas of the factories and thus alleviated the health problems and worries of residents in industrialized areas while also lessening legal and political pressure on the owners of factories in those areas.

This reflected the state of environmental scientific knowledge at the time as well as the ways in which the first generations of factories harmed the environment. It also reflected cultural and social reactions to the earliest forms of pollution: Air pollution is highly visible. While water pollution has arguably as many harmful effects on human and other living populations as does air pollution, for those generations living through the first historical onslaught of industrialization, it was the roaring smokestacks turning the air into toxic soup that were the most obvious signs of a changing world. (of course, as shall be addressed later, no one area of pollution can be seen as separate from any other: The environment is an integrated whole and degradation of the air leaches over into degradation of the water and soil and biomass, with feedback loops all around.)

The particular sources of pollution that prompted the English Alkali Acts were indeed highly damaging to the local environment

. But as is often the… [END OF PREVIEW] . . . READ MORE

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