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The River Pollution Dilemma in Victorian England: Nuisance Law Versus Economic Efficiency

Author(s):Rosenthal, Leslie
Reviewer(s):Troesken, Werner

Published by EH.Net (August 2014)

Leslie Rosenthal, The River Pollution Dilemma in Victorian England: Nuisance Law Versus Economic Efficiency.  Farnham, UK: Ashgate Publishing, 2014. xii + 245 pp. $135 (hardcover), ISBN: 978-1-4094-4182-3.

Reviewed for EH.Net by Werner Troesken, Department of Economics, University of Pittsburgh

Leslie Rosenthal begins his book, The River Pollution Dilemma in Victorian England, with an extended discussion of the great sanitary reformer, Edwin Chadwick.  Enamored with the miasmatic theory of disease, Chadwick began proselytizing for large scale sewer systems during the middle of the nineteenth century.  Chadwick believed that by creating vast water carriage systems in cities, those cities could carry away disease-causing wastes and smells.  Chadwick was, of course, wrong about the miasmatic theory of disease — diseases were not caused by poisonous atmospheres and obnoxious smells — but he was not wrong about the necessity of public sewers for growing and crowded nineteenth century cities. The construction of public water and sewer systems had large and beneficial effects on public health, contributing to about 50 percent of the increase in longevity observed between 1850 and 1950.

Chadwick minimized the impact of sewers on river pollution because he believed there would be a large secondary market for the liquefied sludge generated by sewers and sewage treatment.  There were, however, two problems with his scheme.  First, during the nineteenth century, there was no way to effectively treat the outflow of sewers; and second, there was no secondary market for the sewage.  Even agricultural demand was insufficient to capture all of the waste of rapidly growing urban areas.

As towns grew and sewer networks developed, and as water carriages replaced cesspools and middens, sewerage pollution rivers became an increasing concern.  With the creation of urban sewer systems, rivers and streams in England grew infamous for the offensive orders, effluvia, and human waste they carried.  According to Rosenthal, there was little incentive for sewage polluting towns or individual firms to curtail their waste generating ways and disposal practices because their individual contribution represented such a small share of overall pollution.  This he says was a classic tragedy of the commons problem.  Largely in response to the problem of sewage pollution, Parliament passed the Rivers Pollution Act of 1876.  This Act forbade pollution and solid matter from being deposited into streams and rivers.  The Act had little effect, however, because it provided no clear definition of pollution and created no clear enforcement mechanism.

Rosenthal shows that technology compounded the legislative shortcomings of the Rivers Pollution Act.  Providing a detailed history of various sewage treatment techniques, Rosenthal convincingly demonstrates that during the nineteenth century, there were no effective technologies available to treat sewage and negate its pathogenic properties.  A particularly important sewage treatment technique that pops up occasionally in Rosenthal’s history is the ABC (alum, blood, and clay) method sold by the Native Guano Company, a high-priced private enterprise.  Because of the dubious effectiveness of most sewage treatment techniques, many cities clung to the privy pan system, whereby pans were placed in privies to collect all human waste, and then emptied for use on farms as fertilizers.  The City of Halifax, for example, used the privy pan system until 1939.  Not until the early 1900s, did reasonably effective sewage treatment techniques, such as percolating filter beds, first emerge.

The heart of Rosenthal’s book comes in Chapters 4 and 5.  In Chapter 4, he provides an excellent discussion of the law and economics of water-borne nuisances.  The law of water-borne nuisances in Britain was not based on statutes like the Rivers Pollution Act but on the common law.  The dominant common law doctrine involved natural flow theory or riparianism.  Under riparianism, owners of a stream of water could make “ordinary or reasonable use of a water flow” so long as they did not “reduce the quantity and quality of water available to other users.”  Under the riparian doctrine, cities that dumped their sewage into streams and rivers clearly violated the rights of downstream users with claims to that same water.  This prompted downstream users harmed by municipal wastes to sue either for injunctive relief or monetary damages.  Cities and towns defended themselves against such suits by appealing to the principal of social utility — they gained more by disposing their wastes in rivers and streams than those downstream lost from such actions.  Simply put, the social gains of pollution outweighed the private costs: despite private lawsuits opposing the construction of public sewers, because of the large health gains associated with sewers, cities gained far more from polluting rivers than the handful of private parties aggrieved by such pollution.  This was called the balance of convenience argument under nuisance law.  But as far as water law went, English courts did not entertain balance of convenience arguments.  If they had, Rosenthal’s story would have been a far simpler one: given the overwhelmingly large gains urban populations enjoyed from sewers, municipalities would have polluted to their hearts’ content.

Also in Chapter 4, Rosenthal provides thorough introductions to well-known economic concepts such as Pareto optimality, the Kaldor-Hicks criterion, and the Coase Theorem.  Of these Rosenthal gives special attention to the Coase Theorem, arguing that the historical case studies he provides later in the book provide ample evidence of Coasian bargaining in relation to municipally-generated water nuisances.  Rosenthal also argues that subsequent chapters support Posner’s conjecture that judges try to make the most efficient decision possible.  He writes that judges “were often unwilling slavishly to apply remedies that would enforce these inefficient outcomes” (p. 51).  The way judges avoided enforcing inefficient rules was to allow “contingencies, postponements, and lengthy delays to the remedial process of the law which resulted effectively in the town proceeding, for extended periods, to continue their nuisance-producing pollution activities.”  Because of these [efficiency-promoting] practices, “in no instance did it transpire that river sewage outflows were actually and decisively stopped on the order of the courts” (p. 55).  In Rosenthal’s view, no new precedents were made in dealing with the river pollution problem, but the courts worked in ways to covertly undermine old and inefficient precedents.

In Chapter 5, Rosenthal presents a case study of Birmingham.  The litigation surrounding Birmingham river pollution carried on for 37 years, from 1858 to 1895, when the parties came to a final settlement.  Rosenthal considers this case the preeminent example of his thesis, and the Birmingham case study reveals three key points.  First, it shows how difficult it was to find an effective sewage treatment process during the nineteenth century, highlighting the technological constraints faced by cities of that era.  Second, the Birmingham experience indicates that there was Coasian bargaining, with the city attempting to buy out property owners offended by the city’s sewage treatment processes and outflows.  The only question one might ask is why that bargaining did not end the associated litigation more quickly (i.e., why did it take 37 years to settle?).  Third, the history of Birmingham shows how judges looked for ways to delay the enforcement of injunctions and thereby gave cities more time to find solutions to their waste disposal problems.

The first litigant against the City of Birmingham was Charles Adderly, who sought to enjoin the city from extending the sewer system to any new homes and to prevent the city from further polluting the River Tame with sewage.  In responding to Adderly, the city did not deny the existence of the offences but raised the balance of convenience defense among others.  Another defense appealed to the authority granted to the city under the Birmingham Improvement Act of 1851.  This law had empowered, among other things, the city to build sewers, but it also explicitly stated that it did not empower the city to do anything that might be considered a nuisance under the common law.  The courts rejected both of these defenses and sided with Adderly.  Although the courts granted Adderly injunctive relief, the injunctions were never enforced.  Rosenthal reports that there was bargaining during the 1870s when the city came close to purchasing Adderly’s land and putting an end to all litigation.  Bargaining, however, broke down and it was not until 1895 that the city and Adderly reached an out-of-court settlement.

Other litigants after Adderly were the Gravelly Hill relators.  Unlike Adderly who was primarily concerned with sewage outflows, the Gravelly Hill relators were concerned with the sewage treatment process as they were right next door to the sewage processing plant.  As Rosenthal writes:  “It did not escape ironic notice that, in effect, this double-barreled threat was such that Adderley’s injunction aimed at stopping Birmingham directing its sewage into the river and, conversely, the Gravelly Hill injunction aimed at stopping Birmingham keeping its sewage at Saltley and out of the river” (p. 71).

Rosenthal uses case studies in later chapters to highlight and reinforce the themes he demonstrates in his case study of Birmingham.  For example, in case studies of Leeds and Barnsley presented in Chapter 6, he shows once again how the courts were reluctant to come down too hard on cities and used delays and contingencies to prevent injunctions from being immediately enforced.  Similarly, in Chapter 7, he uses the examples of Leamington Spa and Turnbridge Wells to show that “in no dispute were the sewer outflows to the rivers halted directly by the actions of the court” (p. 119).  And in Chapter 8, he uses the experiences of Harrogate and St. Helen’s Canal to demonstrate the generality and effectiveness of Coasian bargaining.

Overall, The River Pollution Dilemma in Victorian England, is a careful and scholarly work that will be of interest to anyone working at the intersection of economics, law, and public health, especially if they have an interest in public water and sewer systems.  The author does an excellent job sketching out the relevant economics and then showing how history illustrates those economic principles.  My only critique is that the historical chapters seemed unnecessarily detailed and dense.  Nevertheless, this is a fine book that addresses an important historical problem.  It merits the serious attention of anyone working in the field.

Werner Troesken’s latest research looks at the political economy of public health, with a heavy emphasis on water-related issues.  His book Water, Race, and Disease (MIT Press, 2004) shows how and why investments in public water systems benefited African Americans more so than whites; and his book The Great Lead Water Pipe Disaster (MIT Press, 2006) explores the origins and magnitude of water-related lead poisoning.  Troesken’s most recent book, The Pox of Liberty: How the Constitution Left Americans Rich, Free, and Prone to Infection (University of Chicago Press, in press), shows how legal and political institutions shaped the American disease environment for good and for bad.

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Subject(s):Government, Law and Regulation, Public Finance
Geographic Area(s):Europe
Time Period(s):19th Century