governing natureby earl finbar murphy

GOVERNING NATURE by Earl Finbar MurphyReview by: John J. SlainAdministrative Law Review, Vol. 21, No. 1 (NOVEMBER, 1968), pp. 103-109Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40691104 .

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GOVERNING NATURE. By Earl Finbar Murphy. Chicago: Quadrangle Books. 1967. Pp. 333. $7.50.

Reviewed by John J. Slain*

Most people over 30 have some sort of war story concerning the loss of a fondly remembered woodland which population growth has taken for houses or highways, or a body of water, now polluted to the point at which swimming, fishing, boating or even contemplative viewing have become impossible. The writer's nostalgia is for Narragansett Bay, remembered in the late 1930's. At that time, the Bay and its subsidiaries, Mount Hope Bay, and Warwick and Barrington Coves, made up a tidal water recreation area perhaps without parallel in the world.

Fifteen miles wide at the ocean entrance, from Point Judith to Sakonnet, tapering 20 miles north at Providence to a wide tidal river, the Bay is sheltered from the Atlantic by two large islands, Jamestown and the original Rhode Island. Since virtually the whole shore line is sandy beach and the bottom is gradual, there is little of the shore line which is unsuitable for swimming. Blue collar families in Providence might, and frequently did, have beach houses on the west or east shore, complete with a beetleboat (a seaworthy 12 foot copy of the commercial fisherman's gaff-rigged catboat) in which successive generations of préadolescent Blocks and Hudsons sailed to explore a geography as intricate as the Nor- wegian fjords. People also made a living from the Bay, an ideal growing ground for shellfish. At Warren and at Pawtuxet Cove, there were oyster fleets; all along the shore, in the salt marshes, there were the clamdig- gers, mostly recluses, who took a living, at least an existence, in clams and quahaugs from the Bay at low tide, in competition in summer with thousands of children. If they were still extant as an occupational group, there would be a War on Poverty project to concern itself with them - not without reason, since the conditions of their life would compare unfavor- ably with an Alabama tenant farmer's. But at that time, they seemed like characters out of Joseph C. Lincoln's novels of the New England shore- land.

Pollution was not unknown. The Blackstone River drains into the Bay in downtown Providence, after flowing through a dozen textile towns in northern Rhode Island and central Massachusetts and even then the

*Associate Professor of Law, Indiana University Indianapolis Law School.

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104 SECTION OF ADMINISTRATIVE LAW

Blackstone was pretty much of an industrial sewer. But as late as 1941, there was a public beach operating within the City of Providence at Field's Point.

It's mostly gone. Field's Point and its beach were swallowed up by a World War II shipyard. In any event, only a person with a strong death wish would care to swim in the chemical bath which the northern end of the Bay has become. As for shellfishing, a visitor who walked the Warwick Cove shoreline last Christmas Day converted to his own use one of the warning notices staked at 500 foot intervals by the Department of Natural Resources of the State of Rhode Island and Providence Plantations:

These Waters Are Polluted Shellfishing is Prohibited

It now hangs in the visitor's office, a memento mori.

For those who have been made aware of environmental deterioration in ways like these, there is regret at the course of events and anger that nobody seems to be doing much about it. If towns along the Blackstone or the upper reaches of the Hudson are dumping raw sewage, somebody should make them stop. If industry is dumping chemical wastes, make them stop. If autos or industry or householders are polluting the air, then, damn it, put a stop to it. We need some laws with teeth.

To one with that point of view, Professor Murphy's study is a shocker. What he makes crystal clear is that one has totally misunderstood the nature and extent of the problem and has not begun to glimpse even dim outlines of its complexity and intractability.

Most conservation writing, at least most American work, is in the style of the Lanny Budd novels. There are the good guys, fighting for a pristine environment, and the bad guys, who are injuring it. Murphy departs from the distinctive style of the genre in two ways. First, he does not seem to be an Audubon staffer manque. He gives no affecting accounts of dying robins or displaced wildlife; from anything that appears, one might conclude that he has never been outside the limits of an incorporated city. Secondly, his book has no heroes and no villains. What he is describing is a process.

Murphy is concerned with what he calls life-cycle resources: water, air, vegetation, animal life. He makes the point that the problem of environmental deterioration is not unitary. The problems of air are different from the problems of water and the problems of lakes and streams are totally different from each other. Rivers renew themselves given adequate opportunity to do so. If pollution sources are removed,



BOOK REVIEWS 105

itself only a theoretical possibility in Murphy's view, a flowing stream may in time cure much of the damage done to it. On the other hand, since lakes are not regularly flushed by new water, it is possible, and some practical experience indicates, that a lake once dead will remain static in its death unto geologic time. Further, pollution itself is not unitary. Take for example the problem of raw sewage. For a stream polluted by sewage, the traditional indicated solution is improved sewage treatment, the goal being an effluent which is colorless, odorless, and potable. Technically, it is possible (although not without difficulty and immense costs) to produce such a product. However, the effluent thus produced has the characteristics of a very high grade of liquid fertilizer and creates another problem, nutrient pollution. The chemical components of raw sewage kill life outright in the stream; polluting nutrients, however, achieve the same result by triggering a runaway growth of plant life; Murphy traces the biocycle by which the introduction into a body of water of the stuff upon which life within it depends ends in death.

When a pollution source is identified, its elimination may also have secondary consequences which would be unacceptable. The late Rachel Carson argued the case against biocides with eloquence; her position was that pest control should be undertaken less by chemical means and more by fostering living predators of the species sought to be removed. Murphy makes the same point, but with major qualifications. Chemical fertilization and chemical biocides have vastly improved the yield of North American farmland and, in the process, have improved the soil itself. Absent a radical change in population growth patterns, it is predictable that it will be critical at least to maintain the soil productivity improvements already achieved and perhaps to make further improvements. Some parts of southern Europe and central Africa have been made habitable only by the use of biocides, notably DDT. These are not minor gains and the resistance to jeopardizing them by a transition to any uncertain consequences of reliance upon biological pest control will be massive.

But chemical intervention in the biocycle doesn't come free. For one thing, there is the problem of degradability. A common characteristic of many chemical biocides now in wide use is that they retain their chemical structure and thus their toxicity; unlike substances naturally appearing, they are not broken down by ordinary biological or chemical processes. The consequences of their long continued use are not wholly ascertainable; conceivably the jeremiads of Miss Carson may not be wrong.

For most of the world, there is now not enough water to go around and in the future as demands grow from population pressure there will be




sharply less. The result is that water is now reused and will be more reused in the future.1 Reuse introduces complications geometrically. Hundreds of different substances may be dumped into a stream. Chemical reactions may occur between these pollutants, between pollutants and substances naturally there, between compounds thus synthesized and anything else which may be present or introduced. As an additional complication, the soil runoff into streams is not, as I would have thought, greatest in farming areas but in urban and industrial areas. Its consequence is siltation which sharply reduces the carrying capacity of the stream. The result possibilities are almost numberless, but a pretty certain one is that the cost of readying the water for reuse is increased vastly with progressively less satisfactory results.

Murphy has two basic concerns with this pattern, one ecological, one economic. On the ecological side, he examines an assumption that the regenerative powers of nature are unlimited and will continue under all circumstances. There is, he thinks, a point beyond which this does not continue to be true and that the life-cycle resources may be simply overwhelmed by excessive demands. It is, to say the least, disquieting in a sober and precise study to come upon the author's estimate that we are "within one generation" of catastrophe.

One of Murphy's most strongly held views is that the costs of environmental problems are consistently understated. The kind of chain reaction pollution just discussed is one example; another is the continuing cost of maintaining an artificial environment once created. If an engineered regimen is imposed upon a river by dam construction, the cost is not merely the initial capital outlay but also the expense (in the accounting sense) of keeping the river within the new regimen. He lists and describes in detail a number of other examples, from the managed commercial forest to the use of Los Angeles canyon sides and Cape Hatteras beach as dwelling sites. In each of these situations, Murphy thinks that the resource utilization being made would be changed radically if those making the use did not constitute an effective lobby for shifting the primary burden of their continuing use to the public fisc. He is especially ironic on the subject of subsidizing water use for irrigation farming (apparently the least efficient of ways to utilize water), when the product produced is surplus.2

1 Murphy attributes the wretched taste of water in the midwest not to excessive chlorination but inadequate chlorination.

2The Wall Street Journal, September 23, 1968, at page 16 col. 3, reports a spectacular example. During the 1930's, parts of the Texas Panhandle became economically productive



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In Murphy's view, the great vice is in thinking of the life cycle resources as cost-free gifts of nature to be used without thought of tomorrow right until the moment of their, and perhaps our, extinction. He makes the point that this attitude is not peculiar to our culture, our economic system, or even our age. If private industry despoils resources recklessly in seeking the lowest unit cost for current coal production, so does T.V.A. Further, the technocrats who manage the Soviet economy are following as closely in our footsteps as their spoliation opportunities permit, with the same melancholy consequences to their environment. In the pre-industrial world, Renaissance Venice stripped the forests from the east littoral of the Adriatic for cheap timber for its merchant fleets. The damage done proved irreversible and soil erosion produced a coast as stern and rockbound as Maine.3 In the ancient world, rich agricultural societies flourished in the rainless Middle East, based upon cistern and irrigation vditch. Overuse

by tapping trapped and non-rechargeable water reserves. Now that the end of those reserves is in sight, there is a proposal for a $8.5 billion project to divert water from the Mississippi 1200 miles away. All of the region's products are ones which require price supports.

3See Rebecca West, Black Lamb and Grey Falcon, 115-16 (Viking Press ed. 1956): ... No weather can make the North Dalmatian coast look anything but drear. The

dreariness is so extreme that it astounds like luxuriance, it gluts the mind with excess of

deprivation. The hills are naked. That exclusion of everything but rock that we English see

only in a quarry face is here general. It is the landscape. Tracks lead over this naked rock, but it is hard to believe that they lead anywhere; it seems probable that they are traced by desperate men fleeing from barrenness, and doomed to die in barrenness. And indeed these bald hills mean a great deal of desperation. The rainfall sweeps down their slopes in torrents and carries away the soil instead of seeping into it and fertilizing it. The peasants collect what soil they can from the base of the hills and carry it up again and pack it in terraces; but there is not enough soil and the terraces are often swept away by the torrents.

The human animal is not competent. That is the meaning of the naked Dalmatian hills. For once they were clothed with woods. These the earliest inhabitants of Dalmatia, the

Illy nans and Romans, axed with an innocent carelessness; and the first Slav settlers were reckless too, for they came from the inexhaustible primeval forest of the Balkan Peninsula. Then for three hundred years, from about the time of the Norman Conquest to 1420, the Hungarians struggled with the Venetians for the mastery of this coast, and the nations got no further with their husbandry. Finally the Venetian Republic established its claim, and thereafter showed the carelessness that egotistic people show in dealing with other people's property.

They cut down what was left of the Dalmatian forests to get timbers for their fleet and

piles for their palaces; and they wasted far more than they used. Venetian administration was

extremely inefficient, and we know not only from Slav complaints but from the furious ac-

cusation of the Republic against its own people that vast quantities of timber were purloined

by minor officials and put on the market, and that again and again supplies were delivered

at the dockyard so far beyond all naval needs that they had to be let rot where they lay. After

this wholesale denudation it was not easy to grow the trees again. The north wind, which

blows great guns here in winter, is hard on young plantations; and the peasant as he got




collapsed the agriculture, the societies and finally the physical facilities upon which both were based.

What we are faced with is a systems problem. In the absence of effective institutional controls of the use of life-cycle resources, it is not going to happen that any individual or any municipality or any enterprise, private, quasi-public or socialized, will take the long view. Since we simply cannot afford the present rate of spoliation, it follows that institutionalized controls must be developed.

Murphy's approach to breaking out the circle is by use of the price system. Some resource damage is curable, and some uncurable resource damage is unavoidable. In Murphy's view, we must ascertain tolerable damage levels and the cost of maintaining damage within tolerable levels. The costs so ascertained must be charged back to the damage producing activities, so that they may be ultimately reflected in the prices of the goods and services involved. The author, a professor of property law at Temple University Law School, is not under the impression that he is suggesting anything other than a Draconic solution. Whole industries and communities exist in reliance upon non-payment of resource damage costs. The dislocations produced in charging their costs to them would be drastic, to put it mildly. Anyone, for example, who flies into Detroit from the East cannot fail to notice that massive water use by heavy industry south of the City gives the water of the Detroit River there a distinctly different color. Assume that the use there involved was found intolerable and either prohibited outright or that the cost of correction was charged back to the industrial users. Conceivably, the consequences of the latter case might be the same as the first, since the result might be to make the conduct of heavy industry along the Detroit uneconomic, either because it was no longer price competitive with operations less sensitively located or because its products were no longer favorably competitive with other products having a lower resource utilization cost. One need only consider the tenacity with which communities fight to prevent the closing of obso- lete military bases to realize the dimensions of fight involved in depriving a major city of a major part of its economic base.

The problem of setting standards would itself be formidable. As hearings before Congressional committees on the Water Quality Act of 1965 indicated, the scientific community is not now able to set such

poorer relied more and more on his goat, a vivacious animal insensible to the importance of afforestation. The poor peasant is also sometimes a thief, and it is easier to steal a young tree than a fully grown one. So, for all the Yugoslavian Government can do, the mainland and the islands gleam like monstrous worked flints.



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standards and may never be. (Murphy, incidentally, gives Congress high marks for responsibility in accepting the need to act despite imperfect knowledge.) New governmental entities would be required to set standards and to police them because the boundaries of existing governmental units bear no particular relation to water basins or air basins.

Murphy doesn't opt for use of the price system to achieve regulation because he thinks it would be easy; he thinks that nothing else will work:

The statute books are crowded - for anyone with the patience to page through them - with bans upon conduct that would pollute water or air, overgraze a pasture, erode a field, strip a forest, fish out waters, maintain open dumps, or result in any of a wide number of other acts harmful to renewable resources, human environment, and nature. What is needed, instead of additional prohibitions, is a system of institutional restraints which would destroy the illusion that nature's goods are free.

Governing Nature is not an easy book. Its author is a prose stylist of very considerable skill, but one whose writing is tighter than contemporary taste contemplates. Most of the literature, including technical literature, that crosses my desk is overlevened to the point that a reader can pick up the sense by scanning topic sentences. Professor Murphy, who clearly does not think that the medium is the message, writes for word by word reading. It may be said that his book is fully worth the effort.



governing natureby earl finbar murphy

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