Our modern environmental laws are founded on the Christian values of the culture in which our system of laws was developed.
Because some environmentalists hold non-Christian world views, some Christians, especially evangelicals, see modern environmental laws as rooted in pagan values. They are not. They are rooted in a system of law developed in a deeply Christian society. To explain this we need to understand the traditions upon which our legal system is based.
The Christian faith provided the moral foundation of the society of medieval England. Our legal system was built on this foundation.
We do not need proof texts to establish that Christians believe that it is wrong to harm other people — whether that harm is a criminal act or not. We do not have a right to hurt others.
Modern environmental laws are the tools which a modern complex society uses to express the basic Christian value that it is wrong to harm other people.
Today, we think that all the courts do is to look at a statute and decide whether an action is right or wrong. That is not how our legal system was developed. Our legal system is a “common law” system. The easiest way to understand this term — common law – is to think of it as “community law.” It is the law which judges developed based on the community’s values.
There did not need to be a statute for judges to rule that if someone hits another person, the act is wrong. It is obvious that it violates a Christian community’s understanding of what it right or wrong. All Christians know that. Under the common law the judge could require that person who caused the injury to compensate the victim for the injuries he suffered. That was how the common law was developed. It was based on the Christian values of the community.
But what if a person harms another person without in any sense touching the injured person? What if their activity which harmed another person was a legal activity? For instance, a farmer and his ancestors have always watered their cattle from a stream. Upstream, sometime later, another farmer establishes a hog farm which produces a large amount of manure. His hog pens are next to the stream, so that the hog manure pollutes the stream so badly that the downstream farmer can no longer use the stream. His cattle die and the value of his property, which is closely tied to the fact that there is a stream on the property, is degraded.
The downstream farmers has suffered very real harm. However, the upstream farmer is engaged in a legal enterprise from which the community benefits. Can the downstream farmer do nothing to protect himself and his property? Would a judge say, “I’m sorry, I know you are out of business, but the hog farmer is in a legal business.” On the other hand, the judge may decide that the downstream farmer has for generations used this stream to water his stock, and that the later hog farmer’s pollution cannot be permitted to drive him out of business.
How will the judge decide? In such a case the judge would apply a community based legal principle called “nuisance.”
In such a case it would not be necessary to prove that the hog farmer acted negligently, illegally or immorally. Instead, the judge would “weigh the equities.” In a nuisance case the law recognizes that both parties have a valid interest. If the judge finds the damage to the downstream farm is real, he can order the hog farmer to “ abate the nuisance.” However, in these cases it is not a matter of “rights.” The downstream farm cannot claim a right to be free of any indirect damage to his property. The hog farmer likewise cannot claim that he has a right to dump whatever manure he wants in the stream — no matter how much it injures his neighbor. The judge will weigh the “equities.”
For example, in this case if the hog farmer may have a practical alternative to dumping his manure in the stream. He could move his hog pens away from the stream and spread the manure on a field. In this case the judge might order him to do it to protect the downstream farmer even though it was costly for him to move his pens.
On the other hand, if the hog farmer was the only source of protein for the community, the judge might decide that the benefits of the hog farmer’s actions to the community are so great that the damage to the downstream farmer, though unfortunate, had to be permitted.
I think that now you can see that modern environmental laws are rooted in the doctrine of nuisance — which reflected the values of the deeply Christian community in which the the doctrine of nuisance was developed. No one has a right to hurt their neighbor.
Modern environmental laws are simply a legislative form of the common law principle of nuisance.
Our environmental laws are not based on the idea that a person has the right to be free from any environmental insult. Instead they are licensing statutes which start with language such as “the E. P. A. shall issue a permit if ……. “ They recognize that the polluter is engaged in an enterprise that the community permits. However, the legislature also directs the E. P.A. that if it concludes that the emissions of the polluter are harming others and there is practical achievable system for preventing that injury, the polluter must install the system to prevent it. Just like in the common law “nuisance” action there is a balancing of the equities. There must be a real harm, and there must be a practical way to abate that harm.
In fact, one of the main reasons that the large polluting industries accepted national environmental laws is that they feared that there would be a large number of successful nuisance lawsuits that would have resulted in different standards in different areas.
However, now polluters, and their ideological allies, are arguing that the rights of private property are absolute and that the community, acting through its legislature, has no right to order them to reduce or eliminate their pollution. In this they are making claims that are contrary to the Christian principles underlying our legal tradition.