Breaking the Divide: Setting Environmental Precedent in the Chicago River

• Author: Daniel Shtob,Jordan Besek
• DOI: http://doi.org/10.1111/lapo.12137
• Published date: 01 October 2019
• Date: 01 October 2019

Breaking the Divide: Setting Environmental

Precedent in the Chicago River

JORDAN BESEK and DANIEL SHTOB

Here we argue that sociolegal processes can not only restructure social relationships

through setting legal precedent but can also restructure socioenvironmental relationships

through setting what we call “environmental precedent.” By environmental precedent we

mean the environmental consequences of legal processes, environmental consequences that

then become the new, dynamic material reality for future legal processes. We apply the con-

cept of environmental precedent to a legal history of the Chicago River, using this case to

illustrate how interactions between sociolegal and environmental processes can set environ-

mental precedent in a way that reshuffles the social and material foundations of future legal

processes.

For over a century, the Chicago Sanitary and Ship Canal system provided an essential

aquatic corridor for both sewage and ships to move between the Mississippi River Basin

and the Great Lakes. Nevertheless, on December 21, 2009, Michigan Attorney General

Michael A. Cox asked the Supreme Court to order Illinois to shut it down (Michigan,

State of 2009). His logic was environmental. “A highly injurious, alien fish—Asian

carp,” he argued, was on the verge of using this corridor to migrate from the Mississippi

River basin, where it had drastically altered both social and environmental relationships,

to the Great Lakes, where it might do the same (Michigan at 1). Cox was specifically

worried that Asian carp would travel through the canal and fundamentally alter the

Great Lakes’ reported $7 billion commercial and recreational fisheries (US Fish and

Wildlife Service 2004). As redress, Michigan, with the support of the province of Ontario

and the states of Minnesota, Wisconsin, Indiana, Ohio, Pennsylvania, and New York

(i.e., every other Great Lakes state), asked the Court to require that Illinois “take all

appropriate and necessary measures to . . . permanently and physically separate carp-

infested waters . . . from Lake Michigan” by ordering Illinois to put a hydrological bar-

rier in the canal (Michigan at 1–2, emphasis in original). In effect, Cox was trying to

legally restructure social relationships by altering the environmental foundation upon

which they operate.

This case is not unique. Countless sociolegal processes are causally influenced by, and

interactive with, their ever-changing environmental contexts. From the migration of an

The authors would like to thank Richard York, Matt Dennis, Editor Wilson, Managing Editor Walsh, and the

blind reviewers for their helpful input.

Address correspondence to: Jordan Besek, SUNY College at Buffalo—Sociology, 211 Putnam Way, Buf-

falo, NY 14222, USA. Telephone: (716) 645-8467; Email: jfbesek@buffalo.edu.

LAW & POLICY, Vol. 41, No. 4, October 2019

©2019 The Authors

Law & Policy ©2019 University of Denver and Wiley Periodicals, Inc.

doi: 10.1111/lapo.12137

ISSN 0265-8240

invasive species to the fluctuation of water levels to the impacts of legacy pollutants,

environmental processes in themselves can indeed enter into and change legal processes.

In turn, while literature in law and society has embraced the study of environmental

harms (e.g., Ruggiero and South 2013; White and Heckenberg 2014), and many have cri-

tiqued the faults of a purely anthropomorphic legal system (e.g., Benton 1998; Stone

2010; Pellow 2014), this literature has yet to fully embrace the ways in which law is situ-

ated within specific, limiting, and ever-interactive environmental contexts. Following

Parker and Haines’s (2018, 143) call for a better incorporation of the ways in which reg-

ulatory systems are “embedded and interconnected in nature,” in this article we push the

boundaries of law and society’s normative claim that law is both derived from and

dependent upon extralegal social processes (e.g., Tomlins 2000; Anleu 2010; Seron,

Coutin, and Meeusen 2013) to say that, in addition, law is both derived from and depen-

dent upon extrasocial environmental processes.

The central concept we introduce to make this point is “environmental precedent.” By

environmental precedent we mean the environmental consequences of legal processes,

environmental consequences that then become the new, enduring dynamic material real-

ity for future legal processes.

Unlike legal precedent—which finds much of its value in its consistency, which helps

to ensure justice, efficiency, predictability, equality, and the continuing legitimacy of the

legal system (but which is also subject to change as times change) (Landes and Posner

1976; Collier 1988; Maltz 1988)—environmental precedent is stickier: environmental

transformations may have a certain enduring (if dynamic) character that proves difficult

or impossible to undo or reverse as easily as a statute or its judicial interpretation.

Indeed, while legal precedent “depreciates [in value]...because the value of its informa-

tion content declines over time with changing circumstances” (Landes and Posner 1976,

21), it is often unknowable whether and to what extent this is the case for decisions that

leave tangible environmental residues, residues that often change in ways that are not

fully under social control.

For example, the precedential value of cases involving horse cart wheelwrighting or

the negligence standard for buggy speed may have diminished over the last century to

the point of forgotten irrelevance (Landes and Posner 1976). However, part of the Bos-

ton Post Road that once served horse drayage, a thoroughfare in many ways shaped by

the dimensions of these obsolete transportation forms, is now known as Manhattan’s

Broadway. While legal precedent—even forgotten precedent—may likewise leave a resi-

due, when material landscapes are changed through legal processes, the long-term mani-

festations of those changes can be uniquely and surprisingly durable. Law may shape

the physical environment, but physical environments, in all their intra- and extrasocial

complexity, may also shape law.

Furthermore, while many doctrines that direct the application of legal precedent

advise judicial restraint through a reductionist focus on a discrete case or question

(Collier 1988), the practical consequences of an environmental precedent may extend

well beyond the particular controversy (or series of controversies) from which it

originated.

Moreover, notwithstanding the many rationales for adherence to legal precedent,

interpreters of that precedent, such as judges, may overrule it, modify it, or restrict it to

the specific facts of the originating case. There are many reasons for this, ranging from

inconsistent prior interpretation that can undermine predictability to the value systems

of the judge. In the latter case, judges may “wish to appear to be following a course con-

sistent with prior case law [while] . . . restating the doctrine or rationale of the pre-

cedential case in a way that is consistent with the desired result” (Maltz 1988, 386).

©2019 The Authors

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388 LAW & POLICY October 2019