'Knowing' industrial pollution: Nuisance law and the power of tradition in a time of rapid economic change, 1840-1864

Environmental History, Oct 2003 by Rosen, Christine Meisner

THE POLLUTION of the first industrial revolution led to serious environmental degradation in many parts of the United States in the two decades preceding the Civil War. Many industries discharged foul, sometimes toxic, solid, liquid, and gaseous wastes and loud, repetitive, mechanical noises and vibrations into the surrounding air, water, and land. These emissions blackened air and water and disturbed ecosystems wherever rivers were dammed for power, wood or coal burned to power production processes, and slaughterhouses, mills, workshops, manufactories, mines, and smelters established. They also sparked the first significant wave of industrial pollution litigation in American history. Complaining of "noisome," and "noxious" stenches, smokes, dusts, and "smuts," poisonous and corrosive fumes, "corruption" of streams by "foul admixtures," "tremendous noise and pounding," and similar problems, people living near offensive businesses turned to the courts for compensation for the damages industrial pollution inflicted on their homes, farms, businesses, and families. They also sued for injunctions to stop the businesses from continuing to pollute.

This article examines the case law generated by this litigation in order to explore how people made sense of the environmental problems caused by the explosive growth of the textile, lumber, iron, meatpacking, railroad, and machine tool industries before the Civil War.1 The article considers the conflicted nature of American pollution beliefs as they are revealed in forty-six pollution-related nuisance cases decided in Massachusetts, New York, New Jersey, Pennsylvania, California, Illinois, Ohio, and Texas, from 1840 through 1864.2 By bringing together two largely separate literatures-environmental history and the legal history of nuisance case law-the essay will provide insight into the difficulty Americans had coming to terms with the increased scale and new forms of industrial pollution caused by technological innovation and growth in this early, formative era of rapid economic change.

Despite the ecological and civic importance of industrial pollution in the first half of the nineteenth century, environmental and business historians have been slow to examine it. Indeed, as several recent review articles have noted, until the 1990s, little in-depth, systematic research was published on any aspect of industrial pollution in any period of American history.3 In the last several years a number of books and articles finally appeared that address this lack.4 However, most of these publications concern industrial pollution problems in the late nineteenth or twentieth centuries, not the first half of the nineteenth century. Only a few deal in any sustained way with the pollution associated with the first industrial revolution, and, for the most part, these works focus narrowly on environmental change and problems in a specific city, district, or river valley.5

In comparison, legal historians have paid a great deal of attention to the history of early and mid-nineteenth-century nuisance law. They have studied this subject through the lenses of the history of legal doctrine and social and economic history, however, not environmental history. As a result, their work provides a confused, contradictory, and incomplete perspective on American society's response to the problem of industrial pollution during the first industrial revolution. Their conflicting analyses are part of the great debate that gripped the legal history field during the last three decades about whether judges changed common law doctrine during the first industrial revolution in ways that promoted economic development by privileging the rights of industrial entrepreneurs relative to plaintiffs.

Until recently, most who studied early nineteenth-century nuisance law argued that the courts largely abandoned the traditional nuisance doctrines that had once protected people against the environmental harm inflicted on them by the business activity of entrepreneurs. To promote economic growth, judges replaced old nuisance doctrines with new ones that left people affected by pollution and other industrial nuisance problems at the mercy of a capitalist class bent on maximizing profits. Deeply influenced by the work of Morton Horwitz, these historians disagreed only about such relatively minor points as when this shift took place and what doctrines played key roles in the transition.6 A few dissidents argued that the courts in some states interpreted nuisance doctrines in ways that were much less favorable toward industrial defendants. Their work, however, focused primarily on the second half of the nineteenth century and had little impact on mainstream legal history until the late 1990s.7

Then, in a book published in 1996, William J. Novak turned the mainstream interpretation on its head.8 Arguing that "nuisance law was one of the most important regulatory tools of the nineteenth century American state," Novak contended that the courts-rather than abandon traditional, pro-plaintiff nuisance doctrines-turned them into a "potent weapon" for controlling a wide range of industrial polluters. Declaring that the courts "at mid century remained quite willing to issue injunctions, grant damages, and throw people in prison for fouling community health and environment," he argued that the urban industrial environment was "well regulated" by "a deeply rooted American tradition of police and regulatory governance vital to social and economic development."9