“Environmental Law” is, on the one hand, a phenomenon—an active, sometimes frenetic, area of the law for the last forty years. On the other hand, it is an ages-long reaction of civilization to, variously, preserve, protect, use and/or harness natural resources while, at the same time, protecting society from health risks (e.g., typhus) and providing safe public services (e.g., waste disposal and water supply). It is easy for society today to get carried away with arguments over hot topics such as “global warming,” “environmentalism” and/or the never-ending debate between private property rights and the “public right” to be protected from heath threats (whether from air or water sources). It is useful, however, from time to time to put those debates aside and concentrate on context. That is the purpose of this article.
“Environmental law” used to take the form of common law—often times through familiar tort doctrines such as trespass and nuisance; and, for that matter, zoning and land use law. An excellent work on the evolution of environmental law was produced by Alan Parks, who reported that: “In 1202, King John of England proclaimed the first English food law, the Assize of Bread, which prohibited adulteration of bread with such ingredients as ground peas or beans. Regulation of food in the United States dates from early colonial times.” The same work recites that Benjamin Franklin argued, in 1739, on behalf of the “public right” in the “Liberty of Breathing freely in their own Houses” in a case involving the dumping of tannery and slaughterhouse waste into surface water. The genesis of the environmental law extends deep into Colonial American history.