Tuesday, September 1, 2015

Conservative anti-environmentalism

Conservative anti-environmentalism is an intriguing historical topic with great relevance for the development of law. I wrote about it last year, and also noted a book review of Brian Allen Drake's Loving Nature, Fearing the State: Environmentalism and Antigovernment Politics before Reagan. Now Linda Bui has a review in Enterprise and Society of Judith Layzer's Open for Business: Conservatives’ Opposition to Environmental Regulation (MIT Press, 2012). Bui writes:
Layzer argues that contemporary conservative ideas have had an important and mitigating effect on environmental policy—one that is easily underestimated. In part, this can be explained by the conservative movement’s effectiveness at shaping both how and what policy questions come to the table, and not just how they affect policies once they are in place. The author concludes that the consequences of both the direct and indirect (“low profile”) attacks against environmental regulation by conservatives have led to significant delays in the adoption of regulatory measures, the rollback of existing regulations, and a discrediting of the environmental narrative.
The evolution of the tools used by conservatives to try to attack the environmental movement is strongly correlated to changes in the understanding of the economics of regulation and the theory of externalities.... What Layzer... point[s] out... is how cleverly the conservative movement was at playing the academic card. When the economics matched the conservatives’ own needs, they adopted them as their own, and when they did not, they pushed the story line of the minority intellectual elite trying to bully the silent majority. For example, the conservative argument that free markets can solve the problems of the environment if governments are not allowed to intervene simply does not hold water when externalities are present. However, that is not the story that the conservative movement spins. The conservatives’ story begins and ends with the efficiency of the free market. On the other hand, demanding cost–benefit analysis when adopting a new environmental rule is a brilliant strategy when one can attack all the uncertainty associated with both the cost and benefit estimates, guaranteeing a slowdown in rule adoption. 

Monday, August 31, 2015

Coming into the Anthropocene

A few months ago we noted Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014).

Jed Purdy's forthcoming (Harvard Law Review"Coming into the Anthropocene" is a thoughtful review essay of the book, recently posted. The abstract:
This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and highly contested regulatory and judicial interpretation. This analysis, however, does not limit the interest of Cannon’s analysis to this political moment. Rather, Cannon’s integration of legal and cultural analysis has great promise for the Anthropocene, the dawning era when human decisions and values will be among the most important forces shaping the planet. In the future, it will be necessary to think of environmental law as both reflecting and producing ideas of the value and meaning of the natural world. Cannon’s analysis is an excellent starting point for an Anthropocene approach. 
The beach lots at issue in Lucas v SC Coastal Council, the salient case in
which the Supreme Court used Property to limit environmental regulation
(courtesy of William Fischel)

Sunday, August 30, 2015

Competing heritages of international environmental law

Caspar David Friedrich, The Sea of Ice (1823–24)

It seems a group of scholars based in Britain is doing interesting work on the history of international environmental law. A paper by Stephen Humphreys and Yoriko Otomo, "Theorising International Environmental Law", puts forward a thesis about the historical tensions operating in international environmental law. The abstract:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

Saturday, August 29, 2015

Welfare states and environmental states

Erling Nielsen, "The Norwegian Labour Party" (1930) (Thornews)

While political science looks at the past a little differently than does the discipline of history, it can pose theories that can be helpful for structuring or motivating historical inquiry.

Environmental Politics recently published an article by Ian Gough, "Welfare states and environmental states: a comparative analysis", that asks about the correlation between the development of the welfare state and "the environmental state". The abstract:
A framework is presented for thinking about state intervention in developed capitalist economies in two domains: social policy and environmental policy (and, within that, climate-change policy). Five drivers of welfare state development are identified, the ‘five Is’ of Industrialisation: Interests, Institutions, Ideas/Ideologies, and International Influences. Research applying this framework to the postwar development of welfare states in the OECD is summarised, distinguishing two periods: up to 1980, and from 1980 to 2008. How far this framework can contribute to understanding the rise and differential patterns of environmental governance and intervention across advanced capitalist states since 1970 is explored, before briefly comparing and contrasting the determinants of welfare states and environmental states, identifying common drivers in both domains and regime-specific drivers in each. The same framework is then applied to developments since 2008 and into the near future, sketching two potential configurations and speculating on the conditions for closer, more integrated ‘eco-welfare states’.
The article finds that the two issues actually react differently to the "five Is":
A broad-brush conclusion might be the following. Common drivers of changes in welfare states and environmental states include globalisation and internationalisation, the rising power of capital and business over other classes, and the continuing dominance of neo-liberal ideas. Neo-liberalism is a block to progress in both domains, but the other factors operate in different ways in the two domains. International economic and political linkages favour the environmental state but weaken the welfare state. Business power promotes inequality and weakens welfare and, in many countries, blocks climate-mitigation programmes; but its impact on the environmental state depends on the balance of carboniferous and Green business interests.
On the other hand, institutions and ideas continue to explain cross-national differences in both domains. Deep institutional differences persist across the advanced capitalist countries reflecting welfare regimes and varieties of capitalism. These, interacting with different power and ideational constellations, continue to drive different policy outputs in both spheres of state activity with contrasting social and environmental outcomes. Broadly speaking, these demarcate the Anglosphere from the EU.

Tuesday, August 25, 2015

Evergreen nuisance

Nuisance seems to be enjoying something of an academic renaissance. Lynda Margaret Collins recently posted "Evergreen? The Environmental Law of Torts", published in the Tort Law Review. The abstract:
The law of toxic torts – those arising from toxic pollution and products – has often been viewed as an application of old doctrine to new problems. While it is true that tort law existed long before the widespread dissemination of toxic chemicals, the common law of nuisance has, since its inception, protected a range of environmental rights and interests. This article will argue that the law of nuisance is a species of environmental law, has always functioned as a form of environmental regulation, and ought to be applied and interpreted as such in the modern era.

Sunday, August 23, 2015

A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:
Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

Thursday, August 20, 2015

The American abortion battle and the environment

Over at Legal History Blog, Mary Ziegler has been blogging about her new book, After Roe
The Lost History of the Abortion Debate (Harvard UP, 2015). Earlier this week she posted on "Population Control, Immigration, and Environmentalism"; here's an excerpt:
In After Roe, the population controllers’ story illuminates the changing relationship between the movements for legal abortion and women’s liberation. From the beginning, women played a crucial role in demanding legal access to abortion. Just the same, the early movement for abortion rights often shied away from women’s-rights arguments, and the relationship between the two movements was often rocky. At a time when women’s liberation remained controversial and women struggled for respect in the workplace, movement pragmatists believed that they would get results faster if they could convince voters and judges that legalizing abortion would have other desirable effects. Arguing that women had a right to abortion said nothing about how everyone else would benefit from legalization. By sometimes focusing on lower welfare costs, environmental benefits and reduced illegitimacy rates, movement members hoped to reach a larger audience.
All of that changed when the population-control movement found itself buried in scandal in the later 1970s. Sterilization abuse at home and abroad persuaded many observers that population policies were irrevocably racist and coercive. As population control became more controversial, feminists gained new influence in what would become the pro-choice movement. Population controllers also began staying away from the abortion issue, seeing it as another controversy that they could ill afford.
It seems that the implosion of population control had ramifications beyond the issues of abortion and family planning. In the 1970s, leading population organizations often advocated for abortion and family planning, environmental protection, and immigration limits. By contrast, organizations that lobby today for immigration limits, like NumbersUSA and the Federation for American Immigration Reform (FAIR), almost never discuss environmental issues. Conversely, groups like the Sierra Club consistently avoid arguments about the environmental damage some tie to overpopulation.

Tuesday, August 18, 2015

Howard Zahniser again

Another review (see also here) of The Wilderness Writings of Howard Zahniser, edited by Mark Harvey (Univeristy of Washington Press, 2014), this time by Michael Kraft in Environmental History. Kraft writes:
The Wilderness Act that established the National Wilderness Preservation System owes much to Zahniser’s organizational and political skills and his remarkable persistence in drafting a series of bills and building sufficient public and political support to survive the legislative gauntlet. Efforts on behalf of the legislation began seriously in 1956, following a successful movement to halt the Echo Park Dam project. In that year, the Wilderness Society proposed the first bill introduced in Congress to create national wilderness areas. In all, members of Congress introduced some sixty-five bills on wilderness areas in the eight years from 1956 through 1964, and they held more than a dozen hearings on the proposals, both in Washington and around the nation. Those hearings generated some sixteen thousand pages of testimony.
The core idea behind this legislation was to develop a coherent national framework for identifying and preserving wilderness areas rather than to persist with a case-by-case reactive battle over particular tracts of land facing imminent threat of development. As admirable as that goal is, inevitably the legislation sparked intense opposition from economic sectors that sought to maintain full access to nearly all public lands. 
(from Denver Public Library)
 According to the Wilderness Society, even as his health was failing, Zahniser tirelessly rewrote many drafts of the Wilderness Act, and he was instrumental in moving the bill along throughout the hearings and legislative deliberations. His writing and his keen political skills helped to overcome efforts to defeat the bill or severely limit its reach that came from timber, mining, and ranching interests, and from a growing outdoor recreation industry that sought greater use of public lands for recreation.
Zahniser died just months before the wilderness bill was signed into law by President Lyndon Johnson in September 1964. With initial protection extended to 9 million acres of public lands, the act now protects over 109 million acres of wilderness. Moreover, its success in Congress set the stage for one of the most productive periods ever for environmental legislation. That ran from the late 1960s through the 1970s when Congress approved nearly all of the nation’s major laws on environmental protection and natural resource conservation. 

Sunday, August 16, 2015

More on Cecil the lion

In last week's post on Cecil I didn't have time to do much more than copy an extract from the NY Times piece, but I think it's also worth trying to unpack the argument made or echoed in the story that "hunting... is part of a complex economy that has so far proven to be the most effective method of conservation".

One argument seems to be that demand for hunting gives government preserves a lucrative source of income, which they can use for conservation:
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
But that's not really an argument for hunting, that's an argument for letting parks sell "excess" animals to those willing to pay for them; not only hunters, but ivory collectors, medicine preparers, zoos, or whomever.

Another argument seems to be that private, for-profit management is better at conserving land and species than government conservation:
In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
It's not clear what the connection between hunting and restoration is here, other than providing an incentive to private ranch owners to restore land and species so they can make money from hunting. Surely government could do the same, without the financial incentive.

In a strange twist, the article then says:
Representative Absalom Willis Robertson of Virginia
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, [conservationists] argue.
The "proceeds of hunting" allocated by the Pittman-Robertson Act (the Wildlife Restoration Act of 1937) to habitat restoration are actually the proceeds of an excise tax on firearms and ammunition. Now, while it may be true that hunting makes such a tax more palatable from a political point of view, there is no inherent connection between government spending tax money on conservation and hunting.

There are, of course, other conservation arguments for allowing hunting, including keeping populations in check to prevent habitat degradation and giving local populations a financial incentive to preserve wildlife and their habitat. But I find the arguments cited in the newspaper article wanting.

Thursday, August 13, 2015

Cecil the lion and legal history

The furor that has arisen around the killing of "Cecil" the black-maned lion has some asking whether restrictions on trophy hunting would do more harm than good. According to a New York Times piece by Norimitsu Onishi, there's a historical angle to this:
Despite intensifying calls to ban or restrict trophy hunting in Africa after the killing of a lion named Cecil in Zimbabwe, most conservation groups, wildlife management experts and African governments support the practice as a way to maintain wildlife. Hunting, they contend, is part of a complex economy that has so far proven to be the most effective method of conservation, not only in Africa but around the world as well.
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
And because trophy hunting is legal in private game reserves, the animals end up fetching higher prices than they would in being killed for food or other reasons, conservationists contend. Lion hunts, one of the most lucrative forms of trophy hunting, bring in between $24,000 and $71,000 per outing on average across Africa, according to a 2012 study. In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, they argue.
“There’s only two places on the earth where wildlife at a large scale has actually increased in the 20th century, and those are North America and southern Africa,” said Rosie Cooney, a zoologist who is the chairwoman of the International Union for Conservation of Nature’s Sustainable Use and Livelihoods Specialist Group. “Both of those models of conservation were built around hunting.”