by Jamie Benidickson. UBC Press, 2007. 432pp. Hardcover. $85.00. ISBN: 9780774812917. Paper. $29.95. ISBN: 9780774812924.
Reviewed by Shahla F. Ali, Jurisprudence & Social Policy Program, University of California, at Berkeley. Email: Shahla.ali9 [at] gmail.com.
Rarely have legal histories peered into the latrines of the 19th and 20th century. Fortunately, the view from within Jamie Benidickson’s book, THE CULTURE OF FLUSHING: A SOCIAL AND LEGAL HISTORY OF SEWAGE, is informative and quite comprehensive. A reader looking for a full examination of the social and legal history of sewage in Canada, the United States and the United Kingdom will find it in this volume. Benidickson moves through 200 years of sewage history by focusing on key developments in our attitude and treatment of sewage in major urban centers, including Toronto, New York, Chicago, and London. He chronicles the early history of neglect and the prevailing attitude of streams as “nature’s sewers” and how water came to become an acceptable medium for disposing urban and industrial waste. With clarity and insight, Benidickson traces the major court battles, and legislation culminating in the Clean Water Act of 1972. Each step in the murky legal and cultural history of waste disposal, including the legislative attempts, the arguments made in court, the judicial opinions issued at various stages of ongoing litigation is clearly summarized. The author also puts this legal history in the larger context of environmental degradation, national legislation, and changing cultural attitudes and norms of collective responsibility.
The history of sewage described in this book examines the efforts of citizens, government, industries, national environmental activists, and engineers to negotiate the place and treatment of sewage in late 19th century and early 20th century society. Drawing on the evolution of legal doctrine, advancing understanding of the chemical and biological characteristics of water, changing conceptions of disease, and the impact of increasing input from professionals in the fields of public health, engineering and economics, Benidickson describes the interrelation of each of these elements in the ongoing effort to protect our waterways. The questions historically at stake involved the degree of reliance communities placed on professional opinion over the perceptions and preferences of the public, whether the management of water should take place at the local, regional or national level, whether the boundaries of governance should be defined by civic or ecological boundaries, how watershed systems should be designed, what consumers were willing to pay for sanitation efforts, and how pollution laws were to be enforced whether through conciliatory or coercive means.
Benidickson’s history of sewage treatment begins with nineteenth-century industrial development. He notes that industrializations’ “accompanying urban [*778] growth significantly affected the use of waterways and their quality” (p.9). Over twelve well-researched chapters, Benidickson traces the significant changes in our relationship with water. Beginning with a description of early and for the most part unsuccessful attempts by fishing, navigation and riparian interests to forestall an increasing discharge of waste into water, he notes that “with understanding of the very nature of water only beginning to be divested of mythological . . . overlay, legal controls on its use were coming under extreme pressure to accommodate new and increasingly intense needs” (p.56). He then goes on to describe the growing consumption of water in urban centers and the resulting need to remove water and wastes from urban centers. In particular, community needs for street cleaning and firefighting and later the development of modern water closets “highlighted the importance of public access to larger volumes than could be obtained from traditional sources” (p.57). Next he addresses the impact of sewage on downstream residents and the emerging investigation of treatment mechanisms to reduce the volume of raw sewage discharged into the waterways. Focusing on the example of Chicago which experienced significant legal controversy, he notes that “Chicago’s deeply entrenched commitment to dilution as a response to sewage contamination and urban wastewater dramatically demonstrated the obstacles that public health, engineering and legal professionals faced in their attempts to combat the perils released by flushing” (p.183). With important advancements in scientific understanding of the role of water-borne bacteria in the transmission of disease, greater resources were invested in safeguarding human health through drinking-water treatment. The remainder of Benidickson’s book examines competing solutions proposed during the mid to late 20th century aimed at safeguarding the waterways. He concludes with the observation that, “the next century holds promise as an era for renegotiating human relationships with rivers, in which lessons from past experience are used to direct wise and informed action in the future” (p.331).
At the close of the Foreward to his book, Graeme Wynn summarizes Benidickson’s work by stating that THE CULTURE OF FLUSHING “amounts to much more than the sum of its diffuse parts because Benidickson consistently finds order (and meaning) in the complex swirl of factors causing and shaping aquatic pollution” (p.xvi). This, Benidickson, trained in environmental law, administrative law and legal history, does to a very large extent. The book is of particular interest to specialists in environmental history, environmental law, public health, engineering and public policy. However, while there is much useful historical information that can be gleaned from this book, political scientists might wish for more of an overarching heuristic argument explaining the nature and sources of environmental legislative change, or placement within a larger body of regulatory literature. For example, recent work in the area of responsive regulation by Ian Ayres and John Braithwaite, comparing the efficacy of government regulation of various systems throughout the world, offers a [*779] fruitful lens to examine the development of 20th century legislative and policy attempts in the area of waste water treatment. More specifically, within the responsive regulatory literature, emerging work in environmental regulation is particularly relevant. Recent contributions by Neil Gunningham, Robert A. Kagan, and Dorothy Thornton, in their book, SHADES OF GREEN : BUSINESS, REGULATION, AND ENVIRONMENT (2003), provide a theoretically rich exploration of how regulation matters in shaping the behavior of industrial and commercial actors. Through an in-depth study of 14 pulp manufacturing mills in the United States, Canada, Australia and New Zealand, Gunningham, et al., examine why firms achieve the levels of environmental performance that they do. They find in general that variation in environmental performance is accounted for by the interaction between tightening regulations and pressures from community and environmental activists, economic constraints, and differences in corporate environmental management style (Gunningham, Kagan and Thorton 2003). In addition, Robert Kagan’s 2001 book, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW, provides particular insight into the process of policy implementation and dispute resolution in the United States in comparison with Canada and Europe, also the focus of Benidickson’s book. Finally, the literature on the impact of the international epistemic community on regulation and policy, in particular Peter M. Haas’ work on “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone,” provides an important framework by which to measure the impact of scientific research on policy development and implementation (Haas, 1992), a key policy driver described in Benidickson’s book.
Through an examination of Benidickson’s bibliographic notes section, it is clear that the author largely draws on secondary academic sources, judicial opinions, legal documents, hearing transcripts, and legislative reports. Importantly, in order to provide a richer picture of the law unfolding “in action,” he also draws, to a great extent, on newspaper and media sources. This provides helpful insight into how policy choices were framed, the general social context for sewage management and treatment.
Benidickson’s major contribution lies in encouraging members of a consumer society to consider the impacts of the choices we make on environmental degradation, and the responsibilities we share in handling waste responsibly. His book highlights the need for collective action at the local, national and international levels in order to achieve meaningful environmental protection. Benidickson’s book initiates an important dialogue on our treatment of waste, and by no means closes the lid on future work in the area.
Ayres, Ian, and John Braithwaite. 1992. RESPONSIVE REGULATION : TRANSCENDING THE DEREGULATION DEBATE. New York: Oxford University Press. [*780]
Braithwaite, John, and Peter Drahos. 2000. GLOBAL BUSINESS REGULATION. Cambridge: Cambridge University Press.
Gunningham, Neil, Robert A. Kagan, and Dorothy Thornton. 2003. SHADES OF GREEN : BUSINESS, REGULATION, AND ENVIRONMENT. Stanford, CA: Stanford Law and Politics/Stanford University Press.
Haas, Peter M. 1992. “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone.” 46 INTERNATIONAL ORGANIZATION 187-224
Kagan, Robert A. 2001. ADVERSARIAL LEGALISM : THE AMERICAN WAY OF LAW. Cambridge, MA.: Harvard University Press.
© Copyright 2007 by the author, Shahla F. Ali.