Monday, June 13, 2011

On the Origins of Enviro Law: Happy Belated to Rachel Carson

Introduction
The following is a cross-post from my semi-regular "Law for the Planet" contribution at Vertical Review, which is an emerging cultural resource for connecting earth-friendly people, products, services and organizations that are helping to improve the world we live in and move towards a more balanced way of living. The post takes a peek at the contribution of Rachel Carson (1907-1964) to the emergence of environmental law in North America. It was posted on May 27th of this year as a celebration of her birthday and the publication of her books as environmentally-friendly ebooks for Earth Day 2011. It may be easy to say that environmental law would have eventually evolved to similar point today without Carson’s contribution, but it’s hard to overlook her role as the catalyst in putting our policymakers on this regulatory path.

Background
Carson was a marine biologist who joined the U.S. Bureau of Fish and Wildlife Service, where she worked for fifteen years as a scientist, editor, and editor-in-chief of the bureau’s publications. In September 1962, she published Silent Spring, exposing the world to the harmful impact of DDT on birds and humans. One year after its release, this seminal publication had been published in 15 countries and by 1972, it had been translated into 16 languages.

Carson was called to testify before the U.S. Congress the year following Silent Spring’s publication. During the introduction to her June 4, 1963 Senate Hearing on the “Interagency Coordination of Environmental Hazards,” Senator Abraham Ribicoff noted:
Miss Carson, on behalf of the committee, we certainly welcome you here. You are the lady who started all this. There is no question in the mind of any American today that we are dealing with a very serious complicated problem. There is a great void in the information.
Impact in the U.S.
Carson continued to fill that void two days later on June 6 at another Senate Hearing that considered legislation to address the controlled use of pesticides and the impact on fish and wildlife. The impact of her advocacy in the U.S. was almost immediate. Shortly after the hearings, pesticide and solid waste regulation emerged in the U.S. preventing heavy industry from dumping liquid waste into rivers and lakes. (Unfortunately, they started dumping it into old gravel pits and quarries instead, which turned out to have been a bad idea as well.)

Silent Spring was the clear beginning of an informed public with regards to the dangers of environmental pollution. This put pressure on U.S. lawmakers to pass a series of environmental laws throughout the late 1960s and early 1970s. Perhaps most importantly, Carson’s message has been cited as the seed that would later blossom into the U.S. Environmental Protection Agency (EPA):
The official birthday of EPA is December 2, 1970. Like any other birth, EPA's needed progenitors, and a family tree stretching back for years. Surely no factor was more pivotal in the birth of EPA than decades of rampant and highly visible pollution. But pollution alone does not an agency make. Ideas are needed--better yet a whole worldview--and many environmental ideas first crystallized in 1962. That year saw the publication of Rachel Carson's Silent Spring, first in serial form in the New Yorker and then as a Houghton Mifflin best seller. This exhaustively researched, carefully reasoned, and beautifully written attack on the indiscriminate use of pesticides was not exactly light reading. Yet it attracted immediate attention and wound up causing a revolution in public opinion. [See Jack Lewis, “Birth of the EPA” EPA Journal; Nov. 1985, available at http://www.epa.gov/history/topics/epa/15c.htm.]
Impact in Canada
In her recent overview of the history of Canadian environmental law, Toronto-based and globally recognized lawyer, Dr. Dianne Saxe acknowledges Carson’s work as one of the original milestones in the creation of effective environmental legislation in Canada. “I think that Rachel Carson was just as influential in Canada as she was in the U.S.,” notes Dr. Saxe. “Her book captured public imagination, and galvanized demands for government oversight of chemical use. She was absolutely right about the damage pesticides were doing, but the public was oblivious.”

Just as the U.S. witnessed a flowering of environmental legislation, regulatory agencies and advocacy groups following the publication of Silent Spring, Canada experienced a similar blossoming. The Canadian Environmental Law Association was established in 1970 and Ministries of the Environment were created in many jurisdictions, including at the federal level and provincially in Ontario. Ontario continued to demonstrate leadership by adopting air and waste disposal permit systems in a new Waste Management Act and then the Environmental Protection Act. Unsurprisingly, DDT was banned around this time as well.

In Canada, the power to regulate environmental matters is divided between federal and provincial governments. The Canadian Constitution gives the federal government the authority to pass laws relating to fisheries, shipping, interprovincial trade and commerce, and criminal law. In addition, its residuary power to pass general legislation for the “Peace, Order, and Good Government” of the country has also been applied to justify environmental legislation. Federal legislation includes the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act and the Fisheries Act. It also addresses national parks, migratory birds, endangered species and interprovincial matters.

Provincial powers cover matters of a local nature and property and civil rights within the province. The provinces also have primary jurisdiction over agriculture, forestry, mining and hydroelectric development. These powers give the provinces ample authority to pass most kinds of environmental laws. Provincial governments also have stewardship over most natural resources. Provincial regulations for the exploitation of these resources may include measures intended to protect the environment. Other provincial legislation addresses air and water pollution, wildlife conservation and management and the creation of ecological reserves.

Environmental law has made great strides since Rachel Carson testified before Congress in the 1960s; however, many challenges remain. Few areas of the law are completely static and we can expect environmental law to continue to experience rapid change as governments explore new solutions to the challenges created by development and new technologies. Law for the Planet will continue to review our current legal framework on issues related to the environment and explain how these laws may or may not have an impact on the lives of individuals, businesses and communities.

Resources
For more information on how to download copies of Rachel Carson’s books, please visit Open Road Media.

For those who want to learn more about Carson and her work, the following books offer some additional insight:
I would like to acknowledge the assistance provided by Dr. Dianne Saxe in illuminating the history of environmental law in Canada.

~ Rob

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