Saturday, January 24, 2015

Latin America and the US Wilderness Act

Joining pieces by Donald Worster and Libby Robin in Environmental History's roundtable on the US Wilderness Act of 1964 is one by Emily Wakild, "Acts of Courage, Acts of Culture: The Wilderness Act and Latin America". Wakild writes that the history of parks in Latin America defies the social critiques of wilderness that have been advanced in recent years:
In 1940 Mexico had more national parks than any country in the world. Nestled among pine and fir forests, sprawling across volcanoes in the shadow of Mexico City, these parks bore the mark of a particular kind of conservation. Linked to the Mexican Revolution, a vibrant and widespread battle for social justice from 1910 to 1940, the most representative government in the nation’s history created parks as one of many components of a pervasive policy transformation that sought to elevate and empower working Mexicans by providing labor protections, redistributing land, invigorating education, and implementing meaningful political reforms in accord with the Constitution of 1917. While these parks protected natural scenery and had wild components (forests, lakes, glaciers), they were emphatically parks designed for people—places for rural and urban workers to relax or to find new livelihoods in tourism. At their creation, no wilderness whispered in these woods and no wildlife ran in these ecosystems; this was conservation in service of the poor and vulnerable, conservation with social objectives, conservation with people at the center. Today, nearly every remaining swath of greenery gasping for air in the Valley of Mexico is one of these emblems of the revolutionary movement—social justice stitched into the landscape as conservation.
Nahuel Huapi Park, Argentina, the first national park (1903) in South America
*****
Critiques of wilderness have become rote in the past twenty years, perhaps overly so. Consider the history of Mexican national parks in reference to the rise of “new conservation” laid out most emphatically (and hubristically) by Peter Kareiva, Robert Lalasz, and Michele Marvier in 2011. They called for conservation to move beyond parks and protected areas and into programs for rural development and human well-being. They argue that “the modern protection of supposed wilderness often involves resettling large numbers of people” and that “ecologists and conservationists have grossly overstated the fragility of nature.” Both claims play into a classic trope, one that places indigenous and non-Western peoples at the mercy of Northern scientists and overlooks their own agency to build and create rather than to merely react. Not only is there little new about proposals to merge working and natural landscapes—a move Mexicans (and likely others) pioneered in the 1930s—but there is little to show that this will result in improved livelihoods or more vibrant natural spaces. Has conservation alone solved problems of poverty, inequality, and uneven development? No, and that is not what it set out to do. But to assert that conservation has caused these problems, or even has been complicit in them, is to ignore conceptions of conservation and wilderness that do not translate into a US-centered narrative of nature protection. 
There's lots more of interest here.

Monday, January 19, 2015

CFP: Disaster, Environment and Property

Readers may be interested in the recent call for papers (courtesy of H-Environment) for an international conference on "Disaster, Environment and Property: historical approaches, 19th-20th centuries", to be held at EHESS in Paris 2-3 December, 2015. The call explains:
Property systems are essential operators in the anthropization of environments. The transformations they cause or enable often contribute to increasing societies’ exposure to natural hazards. Conversely, historical research shows that some forms of ownership and inheritance law can help to avoid the occurrence of disastrous events, such as avalanches in mountainous areas. Central and local authorities have also long sought to constrain property rights in order to prevent the occurrence of disasters and alleviate their effects, for example by compulsory purchase or the restriction of individual property rights.
Taking a historic perspective focusing on the 19th and 20th centuries, the conference will explore the interactions between property systems, resources and environments, and the particular class of socio-ecological processes that is disasters. The concept here is understood broadly to include “natural”, “industrial”, “demographic” and “ecological” disasters. Property systems are taken as the whole range (individual property, public ownership,  common property and commons, servitudes, intellectual property) with particular stress on the actual practices (technical, legal, scientific, enforcement, etc.) that underpin their existence and combine to make them operate as historical institutions.
Disasters, in their short- and long-term effects, reshape the operating conditions for private and public actors, enabling them to affect the distribution of property and its workings, i.e. its rules of acquisition and transmission and the rights it entails.
A disaster is an occasion for the transformation of property in ways that may have many purposes and motivations: economic, political, ideological. It is also likely, by design or chance, to produce, at a relatively small scale of space and time, an “emergency situation” for property as ordinary rules are relaxed or relief must be provided. Disasters are also a motive for action, often as part of public policy, affecting property rights in order to prevent a catastrophe in advance, or mitigate or repair its effects afterwards. These three aspects (opportunity, emergency, management) interact and overlap to produce a complex set of processes of historical co-construction of property and disasters that the conference will address.
More details at H-Environment.

Sunday, January 18, 2015

Cost-benefit analysis in recent history

Michael Livermore and Richard Revesz recently posted "Interest Groups and Environmental Policy: Inconsistent Positions and Missed Opportunities". In it they argue that over the last few decades the positions of polluters and environmentalists on two of the central questions of environmental law and policy have flipped. The abstract:
This Essay examines and explains the positions of the principal interest groups over the past four decades with respect to the two central questions of environmental policy: the appropriate policy goal and the instrument that should be used to carry out the policy. With respect to the first question, the Essay observes that, at the beginning of the contemporary period of environmental law, industry groups strongly supported setting the stringency of environmental standards by reference to cost-benefit analysis. At the same time, environmental advocacy organizations strongly opposed the use of cost-benefit analysis. As environmental regulators gained greater proficiency in the quantification and monetization of environmental benefits, industry groups came to see that, when properly conducted, cost-benefit analysis could justify stringent environmental protection. Consequently, they have abandoned their original enthusiasm for the technique. Similarly, over the same period of time, environmental groups came to see the promise of cost-benefit analysis, for similar reasons.
An example of an industry attack on marketable permits
With respect to instrument choice, industry groups were originally attracted to marketable permit schemes as a lower-cost means of achieving pollution reduction, while environmental groups were skeptical of the these approaches. First with the Clean Air Act Amendments of 1990, and then when faced with the daunting challenge of climate change, environmental groups acknowledged that market mechanisms are more economically and politically viable than command-and-control regimes because they impose far lower aggregate costs on society. And, industry groups realized that by attacking marketable permit schemes they might defeat greenhouse gas regulation altogether. 
While environmental groups and industry have largely switched positions on the two central questions of environmental policy, the points at which their positions overlapped were fleeting, and opportunities to make substantial progress in rationalizing the system of environmental regulation have largely been unrealized.

Friday, January 9, 2015

An Australian take on the US Wilderness Act

The Reflections section of the latest Environmental History on the US Wilderness Act has a piece by Libby Robin, "Wilderness in a Global Age, Fifty Years On", offering an Australian angle. Robin writes:
While the US national parks model, “America’s Best Idea,” had a strong following in Australia in the 1960s, the idea of wilderness never had the strong transcendental or romantic attraction it held in America. Our wilderness did not create heroes. Australians died in the bush: being away from settlement meant being away from water, and survival was precarious. By 1990 the idea of wilderness was also seen as “western” and not inclusive of Indigenous history. Australian ecologists and historians fiercely debated the limits of “wilderness thinking” some years before Environmental History published William Cronon’s “The Trouble with Wilderness” in 1996. While Richard White’s wry paper “Are You an Environmentalist or Do You Work for a Living?” had a strong following among historians of our 1980s forest debates, it has been the powerful critiques from Aboriginal Australia that have determined new directions in twenty-first-century practices of biodiversity conservation and in the way national parks are now managed.
*****
Walking along Garie Beach, Royal National Park.
Photo: Andy Richards
Some states followed “America’s Best Idea” more closely than others. The New South Wales (NSW) National Parks and Wildlife Act (1967) was directly modeled on the American legislation; its inaugural director of the National Parks and Wildlife Service was Samuel Weems, former parks adviser to the US Department of the Interior. NSW learned of the model at the First World Congress of National Parks held in Seattle in 1962, a major international meeting. NSW National Parks Service joined the enthusiasm for a second congress, in Yellowstone National Park, timed to celebrate a World Centennial of the National Parks Idea in 1972. It was only late in the game, after the US Congress had approved financial support for the event, that organizers realized Yellowstone itself was not a legislated national park in 1872. Technically, the world’s first national park legislation had been passed in NSW on March 31, 1879, to establish the National Park (later Royal), an urban park, just 15 miles from the center of Sydney. This was nothing like the bigger, wilder model of Yellowstone, 1,000 miles from any city. NSW parks managers, as keen as their US colleagues to celebrate a World Centennial in 1972, did not press a claim for priority. They wanted larger more remote wild national parks, and having little interest in city parks, they were aware of wide support for a World Centennial not just in the United States but also in other Western nations where national parks had emerged early including New Zealand, Canada, South Africa, and Sweden. 
Robin writes about the tensions between nascent recognition of indigenous relationships to the land and American ideas of wilderness:

Thursday, January 8, 2015

The Colorado in California

More on the Colorado River. Jason Robison has posted "Colorado River Water in Southern California: Evolution of the Allocation Framework, 1922-2014". The abstract:
An elaborate and nested legal framework, with both interstate and intrastate components, governs the allocation and management of Colorado River water within Southern California. This framework has evolved for nearly a century, and this paper chronicles major milestones in this evolution. The narrative is framed with the formation of the Colorado River Compact in 1922 as a front bookend, and the adoption of the Quantification Settlement Agreement and the Interim Shortage Guidelines in 2003 and 2007, respectively, as back bookends. Reflections on the iterative and provisional nature of the evolutionary process, and Southern California's relative degree of water security resulting from it, appear in the conclusion.
Colorado River Basin graph, 1922
courtesy of the Honorable Greg Hobbs Collection

Wednesday, January 7, 2015

Worster on the Wilderness Act

The last year has seen a lot of reflection of the US Wilderness Act of 1964, including a symposium, a special issue of Environmental Law, a website, and books. The October issue of Environmental History includes several pieces on the Act as part of its Reflections and Gallery sections. First is environmental historian Donald Worster's "The Higher Altruism", which moves from history to thoughts on ecocentrism and environmental justice:
Only the human species could mourn another creature’s extinction or work to protect earth’s ecosystems. It is our unique contribution to conservation. The conservation of energy and matter for the sake of survival are common behaviors throughout the plant and animal kingdoms, but not the conservation of otherness, of wholeness and balance, of endangered communities of life. Those require the evolution of what we might call the higher altruism, an intentional selflessness that may have an element of self-interest but expands to find moral purpose in the act of preservation. Aldo Leopold called it a “land ethic,” but we can also call it a more thoughtful and ambitious preservation of diversity, ecological integrity, and wildness on the planet.
America reached a high point of ecological altruism in 1964 with the passage of the Wilderness Act. Like most moral visions, this one was layered over with vestigial language from the past: wilderness as a “resource,” wilderness as a place to “use and enjoy,” wilderness as an opportunity for “solitude or a primitive and unconfined type of recreation.” Those well-worn justifications were the result of more than sixty revisions needed to gain the approval of two houses of Congress, as well as various conservationist groups, who often were still thinking in anthropocentric and utilitarian terms. But unmistakably the act changed the focus of conservation, away from human needs and material demands to the needs of the other than human world.
Signs in Kalmiopsis Wilderness (Rene Casteran, wilderness.net,
reproduced on front cover of Environmental History
Further on:
The moral cause of preservation remained politically strong until the presidency of Ronald Reagan, who led a backlash that tried to brand preservation as a kind of selfishness that would prevent the majority of Americans from improving their standard of living. True, Reagan signed bills adding nearly 11 million acres of protected wilderness. At the same time, however, he appointed to office people who worked relentlessly to open all public lands to oil, gas, and coal development, to tree cutting, mineral extraction, road building, and motorized recreation, who were determined to block the change in moral perspective that wild lands preservation signified. The subsequent rise of neoconservatism in American society has tended to accept conservation for narrow economic purposes while rejecting conservation for more altruistic ends. The Reagan legacy has often forced preservationists to reemphasize more human-centered goals (e.g., wilderness protection for its tourist potential) and to pursue their more radical goals on private instead of public lands.
More surprisingly, the moral vision of the preservation movement, its commitment to saving and freeing the earth’s community of life, has recently come under fire by critics on the left, who make strange bedfellows with the neoconservatives. Preservationists, we are now told by a growing number in the “save the humans” party, lack a sense of social justice. They want to protect nature from exploitation not only by capitalist ranchers, oil companies, and real estate developers but also by those who are relatively weaker in terms of power or money, whether they are American Indians or peasant farmers in Africa. Anyone who pursues a preservationist vision stands accused of indifference toward the economic needs of the world’s poor. Protecting wilderness and wildlife has become, by this reasoning, an act of aggression against vulnerable people who want and need to exploit the oil, wood, or game that nature offers. To exclude people from any part of the natural world, it is argued, is to deny those people’s rights and to collude in their mistreatment.

Sunday, January 4, 2015

Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:
By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?
*****
By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.
Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation
After discussing a number US Supreme Court decisions, Power goes on:
Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.
But things changed under the Rehnquist and Roberts courts:
During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular. 

Saturday, January 3, 2015

Standard Oil and environmental law

The October 2014 issue of Environmental History has a lot of law in it. We'll start with Jonathan Wlasiuk's "A Company Town on Common Waters: Standard Oil in the Calumet". Wlasiuk writes:
Although the twentieth-century American environmental movement was punctuated by the voices of critics within the modernist state, from Aldo Leopold to Ed Abbey, the predominant narrative focuses on calls for federal management of ecosystems that had been controlled by corporations and local governments since the advent of the industrial era. Environmental historians have engaged the debate over whether private or public forces bear responsibility for environmental decline by examining what Christine Meisner Rosen calls “industrial ecology” in search of the business roots of environmental degradation or, less often, rehabilitation. The federal regulatory framework of the EPA and the raft of antipollution legislation that emerged in the 1960s and 1970s was the culmination, not the beginning, of both federal investigations of public health concerns related to industry dating back to the New Deal era and the failure of a cluster of state oversight, local control, and free market solutions. Betsy Mendelsohn has argued that these regulatory precursors are important because they “established the legal setting for the modern environmental law movement that culminated in NEPA in 1969.” A significant chapter in this transition occurred on the Great Lakes in the twentieth century. The industrial ecology of Lake Michigan reveals the failure of market solutions and local control over the environment: corporations found little incentive to protect the quality of common waters and Lake Michigan collected the ecological consequences from polities severed by state boundaries.
This article examines the growth of federal regulatory power by analyzing a turning point in the ecology of the Calumet region on the Illinois-Indiana border and Lake Michigan. In 1889 Standard Oil transferred the heart of its domestic manufacturing empire from Cleveland, Ohio, to Whiting, Indiana, where it constructed the largest oil refinery in the world. Along the lakeshore of northwest Indiana, Standard Oil began an experiment to reorganize its petroleum empire on the principles of scientific management. For nearly eighty years, the company lived the libertarian dream of freedom from government regulation and extended the logic of scientific efficiency to the control of labor and the environment. In private interviews Rockefeller revealed the guiding ethos of his empire: “I shall hail the day when our watchword shall be efficiency, as applied to labor, to people in all positions.” As industry flocked to the Calumet region and reached a critical mass in the early twentieth century, the consequences of industrial efficiency washed down the Calumet River and into the ecology of Lake Michigan.
Chicago Park District employee Philip Saeli sprays
deodorant on dead alewives at Montrose harbor in July 1967.
Bob Langer, photographer. Courtesy of Sun-Times Media.
When water pollution drifted over state boundaries, a growing awareness of the inability of local and even state governments to control industry developed into calls for wholesale reform by midcentury. As Hugh Gorman has argued, postwar federal government mandates redefined corporate efficiency “from a guiding ethic rooted solely in the efficient use of resources to one that recognizes the need to comply with regulations based on environmental objectives.” The corporate ecology of Standard Oil on Lake Michigan reveals how a commitment to technological control and efficiency produced an environmental collapse that transformed Lake Michigan and threatened the public health of millions of Americans. Although the federal government intervened by the late 1960s, their caution in deferring to local, state, and interstate solutions challenges [James] Scott’s characterization of an aggressive “administrative ordering of nature and society.” In the Calumet region, this description better fits the actions of industrial corporations. 
Among other interesting points, here is Wlasiuk putting a renowned court decision on the public trust in context:

Saturday, December 27, 2014

Yakama Indians and environmental-legal battles

A while back Legal History Blog posted on the publication of Barbara Leibhardt Wester's Land Divided by Law: The Yakama Indian Nation as Environmental History, 1840-1933 (Quid Pro Books, 2014). From the publisher:
Wester’s environmental history of Yakama and Euro-American cultural interactions during the 19th and early 20th century explores the role of law in both curtailing and promoting rights to subsistence resources within a market economy. Her study, using original source files, case histories, and contemporary writings, particularly describes how the struggle to assert treaty rights both sprang from and impacted the daily lives of the Yakama people.
The study is now widely available in this new paperback (and digital) edition, adding a 2014 foreword by Harry N. Scheiber, professor of law and history at Berkeley. This book, he writes, “is a masterful study of the complex, extended series of confrontations between the native Indian cultures of the Yakima region and the regime of the conquering white nation. Her analysis is based on a blending of materials from rich archival sources and from the literatures of legal history, administrative history, anthropology, ecology, and cultural theory. Most remarkably, the book makes important new contributions to all these fields of scholarship.”
“In her remarkable book Land Divided by Law, Barbara Leibhardt Wester eloquently portrays the Yakama Indians of the Columbia River Basin as actors defending a threatened, living landscape from encroachments by settlers. Using federal officials and the courts to advocate for their rights, they reasserted a spiritual heritage of the earth as body, heart, life, and breath. Anyone interested in Native peoples and their interactions with Euro-Americans will want to read this lively, engaging account.”
— Carolyn Merchant, Professor of Environmental History, University of California, Berkeley
“This is a remarkable work that brims with insight about the inter-relatedness of nature, work, law, and culture. Wester blends expertise in several different academic disciplines with a superb gift for narrative into her analysis of the Yakama people’s defense of their traditional way of life. The book is a testament not only to the skill and resilience of its subjects but also to the power of the author’s empathy and respect for them.”
— Arthur F. McEvoy, Associate Dean for Research, and Paul E. Treusch Professor of Law, Southwestern Law School

Friday, December 26, 2014

Drinking water regulation

Slate recently published a piece by James Salzman marking the 40th anniversary of the US Safe Drinking Water Act. Salzman writes:
Prior to the understanding of germ theory in the late 19th century and realization of the dangers bacteria posed, cholera and typhoid epidemics were commonplace and little-understood. The practice of chlorination, introduced to America by the water supplier for Jersey City in 1908, eradicated these threats within decades. Ironically, Jersey City actually sued the water company, arguing that the older system of sand filtration was needed to provide the pure and wholesome water required in the supply contract. The judge decided in favor of progress, finding for the company. The New York Times report of the decision was remarkably prescient about the importance of chlorination: “so successful has been this experiment that any municipal water plant, no matter how large, can be made as pure as mountain spring water.” Written a century ago, it almost reads like an ad for bottled water today.
The first standards for drinking water in America were developed by the Public Health Service in 1914, two years after the famed aviation brother Wilbur Wright died of typhoid. The federal standards addressed bacteriological threats, but the PHS’ powers were limited, so the standards applied only to interstate common carriers such as trains, buses, and ships. Water providers to these carriers had to use chlorination, and this soon covered all the major cities.
The PHS standards were neither comprehensive nor revised very often. Rachel Carson’s Silent Spring heightened the country’s consciousness about pesticides and chemicals, and advances in science revealed whole classes of dangerous viruses, but only 28 of these contaminants were covered when Carson’s book was published in 1962. And even where there were federal standards, there was scant implementation. By 1970, the PHS standards directly applied to just 650 out of the nation’s 35,000 public water suppliers. Only 14 states had adopted the standards for themselves.