Breaking the Divide: Setting Environmental Precedent in the Chicago River

Abstract

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 concept 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 environmental precedent in a way that reshuffles the social and material foundations of future legal processes.

Environmental Precedent: Foregrounding the Environmental Consequences of Law in Sociology

“…Unlike legal precedent, which is often reinterpreted and may be modified to suit immediate needs through judicial or legislative action (Landes and Posner 1976;Maltz 1988), environmental precedent can have interpretive and material consequences that may be Environmental Precedent impossible to predict, amend, or reverse. In many cases, these forms of environmental precedent cannot be undone with the stroke of a pen, the passage of a new piece of legislation, or a change in composition of a court (Besek and Shtob 2019).…”

“…The second part of the definition states that these "environmental consequences then become the new, enduring, dynamic material reality for future legal processes." This refers to how the process of setting environmental precedent does not occur in a historical vacuum, but is materially, socially, and ideologically tied to both the past and the future (Besek and Shtob 2019). For instance, if permits for mining in a specific geography are granted, this implies legal preconditions (that ownership is established), social preconditions (value placed upon the commodity to be mined), ideological preconditions (that the commodity should be mined), and environmental preconditions (the very existence of that commodity in a particular place).…”

“…It should come as no surprise, then, that Besek and Shtob (2019) are not the first sociologists to examine relationships between and among legal and environmental processes. Over the past three decades a rich, diverse, and interdisciplinary literature in green criminology has developed to examine "environmental harms.…”

“…At present, collaboration is hampered for several reasons, including: the historical closure of analysis of legal issues to non-legal researchers (Blomley 1994); the view that law is a text or immutable thing rather than a set of contingent, contested socio-environmentally embedded processes; and interpretive uncertainty about how legal concepts may translate to material outcomes outside of their initial or intended scope (Besek and Shtob 2019). Environmental precedent can provide a novel mechanism for collaboration between legal practitioners and social scientists, one that takes advantage of core social-scientific competencies while also engaging with the institutional and processual elements of legal practice and norms, in addition to text and theory.…”

“…We then move to the illustrative core of this paper. Whereas we initially used a legal history to demonstrate the utility of the concept for legal scholars interested in environmental issues (Besek and Shtob 2019), here we show how it could be used to enhance a series of substantively different cases arising in a variety of sociological subdisciplines.…”