Monday, September 15, 2014

Old maps, natural resources, and international law in the South China Sea

(By way of Imperial & Global Forum:) Quartz recently published "The Philippines hopes a trove of ancient maps will prove its territorial claims against China", by Lily Kuo. Kuo writes that last week:
the Philippines opened an exhibit featuring dozens of maps spanning over 1,000 years of history—a collection that the Philippines says disproves China’s claim of sovereignty over a rocky shoal in the South China Sea, which has provoked increasing tensions between the two countries.
The exhibit held by the Institute of Maritime and Ocean Affairs includes maps from as far back as 1136 A.D. that purportedly show China’s southernmost territory has always been the province of Hainan—which would undercut China’s claims to much of the South China Sea, including territory that is claimed by the Philippines and Vietnam, among other countries. Ancient maps of the East Indies, of which the Philippines was a part, are shown to include what is today known as the Scarborough Shoal, a small piece of land about the size of three rugby pitches to the west of the Philippines, home to valuable fisheries and potential fossil fuel reserves.
The article includes some gorgeous old maps, including these:

World map published by Jesuit priest Matteo Ricci (1602 )

Published by Jesuit Pedro Murillo (1734)
(US Library of Congress)

Tian Ditu, or “the Atlas of Heaven and Earth” (1601)
(US Library of Congress)

The exhibit catalog is available on line.

Friday, September 12, 2014

A Source of Environmental Concern: The Tyne’s River Court Books, 1644-1834

[Today we have a guest post from Leona Skelton, an environmental historian currently working at the University of Bristol as an AHRC-funded Post-doctoral Research Assistant on the collaborative project, ‘‘The Power and the Water: Connecting Pasts with Futures’’. Her doctoral thesis compared waste disposal, environmental regulation, and attitudes towards cleanliness and dirt in York, Edinburgh and several other northern English and lowland Scottish towns, 1560-1700.]

Carmichael, Sandegate Shore at Newcastle on Tyne (1830)
(R. Johnson, The Making of the Tyne (1895), p. 23)
Environmental concern is something most people proudly associate with more recent times. It is true that Newcastle Corporation, which regulated the estuary of north-east England’s River Tyne, would certainly not win a conservation prize for sensitive river management today. However, the records of their weekly river court, extant from 1644 to 1834, held at Tyne and Wear Archives in Newcastle, provide unique, detailed and valuable evidence of early environmental concern and demonstrate that the men who managed the River Tyne were by no means completely ignorant towards protecting the Tyne from ‘harm’, as they defined it to the best of their knowledge. The stereotypical image of early modern people pouring their waste into the river without any consideration of the consequences of their actions is an enduring but an inaccurate one.

The court books show that the disposal of human and industrial waste was highly regulated, especially on riparian property and even more so on wharves or jetties. Open sewers were designed only to carry rainwater and small amounts of other liquid waste to the river, notably not to carry solid waste to the river. The majority of households used dry privy pits, which were dug out periodically and transported by horse and cart to local farms and applied directly to arable fields as fertiliser. The men who managed the River Tyne’s estuary in the pre-modern period did not understand the chemical changes they caused by permitting urban sewers and riparian businesses to discharge their untreated liquid waste into the river water. But they considered in breath taking detail and depth the consequences of each and every structural change to the bed and channel of the river and they expressly forbade the deposition of any solid waste into the river, either directly or indirectly, something which required substantial and sustained effort to regulate. Their motivations were not environmental in a modern-day sense; indeed, I have not seen the words ‘environmental’ or ‘pollution’ in any of the pre-1800 documents I have read. However, Newcastle Corporation was careful and it was concerned about maintaining its own river standard on the Tyne.

Driven, perhaps, primarily to prevent the choking up of their great liquid highway which was crucial to trade and their revenues, they did think carefully about the proposals they sanctioned and they were concerned about the impact of human activity on the River Tyne in a pre-modern context. They were in touch with their environment, they were concerned about hurting the river, damaging the river, spoiling the river, and even potentially destroying the river, all their own words, and they went to considerable lengths to protect the River Tyne as a result of their concerns. In addition to enforcing a substantial list of specific river bylaws, all servants living in ‘Gateshead, Sandgate, and the Close’ had to swear in court annually that they would not cast rubbish into the river. Many bylaws passed at this time have been criticised as merely reactive or exclusively fiscally motivated, but this procedure, in particular, was preventative. Clearly, fines were the means, not the ends.

Wednesday, September 10, 2014

Ownership of natural resources in the Third World

Tomorrow is the 41st anniversary of the Chilean coup d'état in which a military junta with Augusto Pinochet at its head overthrew the government of Salvador Allende. A while back Chris Dietrich had a very interesting post on Imperial & Global Forum in which he explored the motivations behind the vehement American opposition to Allende's regime. Some selections:
“Allende was assassinated for nationalizing the . . . wealth of Chilean subsoil,” Pablo Neruda wrote on September 14, 1973. Neruda was lamenting the overthrow and death of his friend, Chilean President Salvador Allende, a week before he himself succumbed to cancer.  “From the salt-peter deserts, the underwater coal mines, and the terrible heights where copper is extracted through inhuman work by the hands of my people, a liberating movement of great magnitude arose,” he continued.  “This movement led a man named Salvador Allende to the presidency of Chile, to undertake reforms and measures of justice that could not be postponed, to rescue our national wealth from foreign clutches.”  Unfortunately, Allende’s flirtation with economic nationalization ran up against the country’s multinational business interests, particularly those that had support from the U.S. government. His socialist reforms were also ill timed; the U.S. government’s ideological view towards the global economy tended towards the Manichean. 

Saturday, September 6, 2014

Public utility, past and future

William Boyd recently posted "Public Utility and the Low Carbon Future", in which an interesting historical survey of the concept of public utility in Progressive, American thought serves as the backdrop for discussion of future climate policy. The historical part of the article connects the law of utility regulation to the thought of the American Legal Realists, institutional economists, and pragmatists. From the abstract:
This Article argues that a revitalized and expanded notion of public utility has a critical role to play in efforts to decarbonize the power sector in the United States.
PECO Delaware River Power Plant
In making this argument, the Article looks back to an earlier, more expansive concept of public utility as articulated by Progressives, legal realists, and institutional economists in the early twentieth century. This earlier concept of public utility contains valuable insights for dealing with the current challenges of decarbonization. The Article shows how this broader concept of public utility was substantially diminished by a confluence of external challenges and a sustained intellectual assault mounted by economists and lawyers starting in the 1960s. The narrowed understanding of public utility that resulted, it is argued, has distorted our views regarding the role of markets and disruptive technologies in the sector. In fact, basic public utility principles continue to govern a significant amount of activity across the power sector, including in both wholesale and retail electricity markets. And there are important unrealized possibilities embedded within the public utility concept that hold considerable promise for reforming current regulatory and business models in the face of rapid technological change and growing decarbonization imperatives.
Such principles and possibilities are particularly important in ongoing efforts to increase renewable energy and finance large low-carbon generation projects. They also hold great promise for ongoing efforts to plan for and optimize the integration of increasingly large amounts of distributed energy resources such as rooftop solar, demand response, and energy storage. Indeed, when one looks at the overall scale, complexity, and sequencing of investments needed to decarbonize the power sector over the coming decades (however it comes to be organized), it is clear that the broad concept of public utility offers essential tools for planning and coordinating such investments over the long time horizons contemplated and for managing a system of increasing complexity.

Thursday, September 4, 2014

The rise of law and economics

As I've written before, the law and economics movement is of cardinal importance in the legal-environmental history of the last half century. US Intellectual History Blog recently hosted a guest post by Sara Mayeux, "Three Ways of Explaining the Rise of 'Law and Economics,' and Also, One Way". Mayeux discusses "three recent accounts, each emphasizing a different causal mechanism: the two chapters on law and economics in Steven Teles’s book The Rise of the Conservative Legal Movement; the discussion of law and economics in [Daniel] Rodgers’s Age of Fracture; and Brad Snyder’s recent article 'The Former Clerks Who Nearly Killed Judicial Restraint.'” All resonate with the history of economic analysis in environmental law. Some highlights:
Richard Posner
Like most accounts of law and economics, Teles’s narrative begins with the University of Chicago Law School’s strong core of economics-oriented faculty going back to the 1930s and then proceeds to Richard Posner’s tenure at Chicago beginning in 1969. Teles quotes the legal scholar Douglas Baird, who explains how Posner’s prolific and eclectic output diffused law and economics to just about every doctrinal subfield: “In the early seventies, people like Posner would come in and spend six weeks studying family law, and they’d write a couple of articles explaining why everything everyone was saying in family law was 100 percent wrong. And then the replies would be, ‘No, we were only 80 percent wrong.’ And Posner never got things exactly right, but he always turned everything upside down, and people talked about law differently” (Douglas Baird quoted in Teles, 99-100).
In contrast to Teles’s emphasis on particular personalities and institutions, Daniel Rodgers paints law and economics as one detail in a larger panorama. Law, in his account, is one of many ships on the sea of the 1980s, all buffeted in the same direction by the same storm: “the chaotic economic turmoil of the 1970s” (44). In the chapter of Age of Fracture entitled “The Rediscovery of the Market,” Rodgers describes the 1980s as a moment of widespread cultural “enchantment” with the word “market” and all that it represented (41), borne of a collective longing to understand and, perhaps, control the turbulent economic forces that were remaking America in so many confusing ways. He subsumes law and economics into this larger cultural turn, offering it as just one more discipline-specific example among many: “In the universities, the analytical tools of microeconomics were employed to extend models of utility-maximizing behavior into virtually every quirk and cranny of human life. Lawyers talked knowingly of Pareto optimality and the Coase theorem; philosophers and political theorists debated analytical models of rational choice. In more and more contexts and in answer to a broader and broader range of questions, one heard now that ‘the market decides’” (42). 

Tuesday, September 2, 2014

Environmental-legal conflicts in the western Mediterranean mining industry – Portugal

[We have today a guest post from Paulo Eduardo Guimarães, Senior Lecturer in Contemporary History at the University of Évora and researcher at NICPRI (Research Unit on Political Science and International Relations). Paulo presented a paper on this topic at the recent World Congress on Environmental History at Guimarães.]

The growth in the demand for sulphur and copper by the British world economy was directly responsible for the spurt in the exploration of old mine deposits of pyrite ores beginning in the middle of the 19th century in the western Mediterranean. As consequence, the roasting of pyrites in blast furnaces or in open air ‘telleras’ in large scale operations led to conflicts with landowners, farmers, peasant communities, miners, and local populations affected by acid rain and sulphur smoke.

The old open pit mine of Sao Domingo (1958-1965), now full of acid waters
The violent incidents of Rio Tinto in 1888, when the Spanish army intervened to repress a peaceful demonstration against that pollution, killing about two hundred men and wounding an indeterminate number of other protesters, became the landmark of that conflict in the historiography of the western Mediterranean mining industry. However, violent reactions against modern mining industries were not exceptional in this part of the world. An account of these types of industrial conflicts in Portugal shows the emergence of popular violent reactions against mining operations due to environmental disruption. These included the occupation of mining fields, ‘Luddite’ actions (destruction of machinery, forests, and mining infrastructure), and sabotage in larger explorations located in the southern Alentejo province and in the mines of the Aveiro district.

The detailed analysis of each incident reveals a more complex picture than the label ‘peasant protest’ or ‘environmentalism of the poor’ suggests. Not only peasants and poor people were involved in collective actions against mining companies; landowners and farmers made use of legal instruments. Yet they were often unsuccessful in court, as the mining law favoured the foreign capitalist ventures. The use of ‘expropriation for public utility’ was a sword of Damocles hanging over these disputes, and the companies often used it.

Monday, September 1, 2014

Mervyn Susser and the question of causation

George Conk recently blogged on the passing of epidemiologist Mervyn Susser, 92. Susser wrote, among other things, on the problem of causation, which can often be a serious obstacle to obtaining damages for environmental harm (or instituting regulation to prevent it). Conk writes:

The former editor of the American Journal of Public Health, he was a South African-born progressive, who collaborated with his wife Zena Stein.  I had just began to seriously look at the problem of how to prove causation of disease in occupational illness cases where no exact mechanism  of injury could be identified. Susser gave me direction as I represented the Trial Lawyers Association  in the asbestos-related disease case Landrigan v. Celotex, a landmark guide in the use of scientific evidence.
Mervyn Susser, like the great progressive epidemiologists Irving Selikoff  and Sir Austin Bradford Hill, was motivated by the fight against disease and the need to identify causal relationships.  The epidemics of heart and lung disease associated with tobacco and asbestos motivated Selikoff and Hill. Susser, a pioneer of community medicine, worked in a clinic treating Black citizens in Johannesburg. In the progressives view causal inference was to be achieved neither by idolatry of formal tests of statistical significance nor by anecdotal snapshots.  Rather the public health called for a socially aware observational perspective informed by clinical methods, pathology, and biostatistics.  No single factor was decisive.  The health of patients called for effective strategies, not skepticism. 
Dr. Susser explained that scientific skepticism is to be doubted.  “We have to practice believing”.  He wrote:
In the end, a quality which lawyers should understand better than any- judiciousness- matters more than any.  Scientists use both deductive and inductive inference to sustain the momentum of a continuing process of research.  The courts of law, and the courts of application, use inference to reach decisions about what action to take. Those decisions often cannot rest on certitudes, most especially when population risks are converted into individual risks. It is my firm belief, nonetheless, that practical decisions that draw sustenance from scientific inference will be better decisions than those that do not.   

Wednesday, August 27, 2014

Robert Jackson on public and private rights in water

Over at Legal Planet Jonathan Zasloff yesterday posted "A Hidden Property Gem From Justice Jackson", in which he admires Jackson's lucid judicial writing in the 1945 case, United States v. Willow River Power Co. The quoted passages certainly do seem like a breath of fresh air when compared, style-wise, to the opinions of today's US Supreme Court (and many other courts), but, like Zasloff, I also like the understanding of property rights expressed in the opinion. He writes:

In this case, the federal government constructed a dam on the Mississippi River, which backed up the water onto a tributary river, reducing the ability of the tributary to produce hydroelectric power for the plaintiff’s own dam. It sued for a taking. The Court held 7-2 that there was no taking.
But the case stands out as much for the clarity of Justice Jackson’s language than anything else:
It is clear, of course, that a head of water has value, and that the Company has an economic interest in keeping the [tributary] at the lower level. But not all economic interests are “property rights;” only those economic advantages are “rights” which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion. The law long has recognized that the right of ownership in land may carry with it a legal right to enjoy some benefits from adjacent waters. But that a closed catalogue of abstract and absolute “property rights” in water hovers over a given piece of shore land good against all the world is not, in this day, a permissible assumption. We cannot start the process of decision by calling such a claim as we have here a “property right;” whether it is a property right is really the question to be answered. Such economic uses are rights only when they are legally protected interests.
As Zasloff writes, "I’m not sure as clear a statement of legal realism or positivism has ever been made." Many, including environmental historians (and also lawyers), often mistakenly attribute great importance to something being called a property right, but as Jackson explains, saying that someone has a "property right" is properly the end of a legal analysis, not its premise.

Tuesday, August 26, 2014

Parks and indigenous populations

The modern conservation movement began at dawn on December 8, 1850, above the north fork of California’s San Joaquin River. 
So begins's Eric Michael Johnson's post, "Fire Over Ahwahnee: John Muir and the Decline of Yosemite", at his Primate Diaries blog at Scientific American. On said date American militia carried out a massacre of Ahwahneechee Indians who lived in the Yosemite Valley.
One month later, on January 13, 1851, by order of California Governor John McDougall and through a special act of the U.S. Congress, the Savage militia received federal and state support to “punish the offending tribes” in the region later to be renamed the Yosemite Valley. For the leadership of California’s newly established government the approach for dealing with the native population had become a “war of extermination.” For more than a decade afterwards the land between the Merced and Tuolumne rivers remained under permanent military occupation and eventually became a national park by order of President Theodore Roosevelt in 1906.
In his famous nineteenth-century travel writings in the Sierra Nevada Mountains Muir described Yosemite not just as a picturesque marvel of nature, but as something divine that was beyond human frailties. The landscape of the “Sierra Cathedral Mountains” was a “temple lighted from above. But no temple made with hands can compare with Yosemite,” he wrote. It was a place that was “pure wildness” and where “no mark of man is visible upon it.”
It’s not that Muir didn’t encounter native peoples in his travels. He did, but he found them to be “most ugly, and some of them altogether hideous.” For a wilderness as pure as his holy Yosemite “they seemed to have no right place in the landscape, and I was glad to see them fading out of sight down the pass.” But, ironically, these “strange creatures” as Muir described them were the ones responsible for many of the features that gave Yosemite Valley its park-like appearance, the “landscape gardens” that Muir so valued. It is this forgotten legacy that has undermined many of the successes in the U.S. and even the global conservation movement today, one that traces directly back to John Savage and John Muir and the first protected wilderness site that later became the model followed around the world. 
It wasn’t only Muir who was struck by the ordered beauty of Yosemite Valley. Lafayette Bunnell, the New York physician who accompanied Savage on his exploits in 1851, recalled that “the valley at the time of discovery presented the appearance of a well kept park.” Likewise, Galen Clark who was the state guardian of the Yosemite Grant after it was ceded to California, remembered similar conditions when he first visited in 1855. “At the time,” Clark wrote, “there was no undergrowth of young trees to obstruct clear open views in any part of the valley from one side of the Merced River across to the base of the opposite wall.”
David Iliff, Tunnel View, Yosemite Valley
(License: CC-BY-SA 3.0)
However, these conditions didn’t stay that way for long. Forty years later Clark found that Yosemite’s open meadowland had all but disappeared, estimating that it had been “at least four times as large as at the present time.” The reason for this, known in the nineteenth century but little appreciated until recently, were the many ways that Yosemite’s first inhabitants had transformed their environment over hundreds, if not thousands, of years. Chief among these was the strategic use of fire.

Monday, August 25, 2014

More on TVA v Hill

H-Environment recently posted Drew Swanson's review of Zygmunt Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River (Yale UP, 2013). (A discussion of the snail darter case was posted here a few months ago.) Swanson writes:
Plater’s narrative offers several insights into both the case and 1970s environmentalism. First, the book highlights the immense complexity of these legal and political battles, walking readers through the grinding work of contacting representatives, building support networks of activists, researching cases, and filing briefs; The Snail Darter and the Dam moves much of this hidden labor out of the shadows. Second, Plater’s experience demonstrates the shoestring nature of many environmental organizations at the time. Often operating out of attics or cramped rental offices and subsisting on savings and donations from a few dedicated backers, these groups still found ways to influence the political process, and environmental historians would do well to follow Plater’s lead and pay more attention to lobbyists. Finally, the author argues for the immense importance of the media in framing environmental issues and swaying public opinion. For TVA vs. Hill, Plater is convinced that the national media’s “avoidance of complex thinking” reflected “a low opinion, apparently shared by many within Washington, of the intellectual ability and interest of the American populace” (p. 176). Once newspapers and television news defined the case as a tiny fish versus an enormous dam project, the popular case was already all but doomed.
Snail darter
(USFWS Photo)
Where the book is least effective is in supporting Plater’s argument that the snail darter was more than just a tool of opportunity for dam opponents. He asserts that he and other supporters of the darter were not “hypocrites as well as fools, environmental extremists manipulating the darter to misuse the law over a technicality,” and yet throughout the book Plater admits to questioning their motives and their implications (p. 43). The issue is both troubling and refreshing for Plater’s honesty.