Wednesday, October 7, 2015

Antimonopoly in Public Land Law

Michael Blumm and Kara Tebeau recently posted "Antimonopoly in Public Land Law". The abstract:
Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. 
Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.
Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.
More on antimonopoly in American natural resource law here.

Tuesday, October 6, 2015

Arnold Reitze and environmental law in the sixties

Continuing the thread on early environmental law courses, Prof. Arnold Reitze has kindly allowed me to post his recollections of his work at Western Reserve in the 1960s, a demonstration of the interesting work that was being done in environmental law in this period in the academy and at a variety of governmental levels, as well as of the cross-fertilization of teaching, scholarship, and activism. Prof. Reitze writes:
I moved to Western Reserve in 1965 to be the school’s tax teacher. I earned my living teaching tax, but spent much of my time as an environmental activist. I was the counsel for Citizens for Clean Air and Water and for the TB Association’s Air Quality Committee. I also represented the Izaak Walton League. I was very involved in the first attempt to use a voter petition to force the legislature to enact environmental laws. The CAA of 1963 created a conference program for air quality improvement, and Cleveland was one of the areas subject to that laws program. I spent a lot of time on that effort. The 1965 Federal Water Pollution Control Act created a zoning program for improving water quality, and I was active in working to set stringent standards for northern Ohio’s rivers. 
When Louis Toepher became Dean he wanted to hire an experienced tax teacher, and he asked me what I wanted to do. I said I wanted to start an environmental program focusing on eastern pollution issues. I then became the nation’s first full-time environmental law teacher. (Joe Sax also was doing some environmental law work, but he spent his career in water and natural resources and never got seriously involved with the pollution control programs that were transferred to the EPA in 1970.) I taught natural resources law, which eventually was named environmental law, but I believe I continued to teach the more traditional natural resources law with a focus on Ohio issues. I also taught water law and administrative law (which was primarily nuclear energy). [I was active in the fight to stop Davis-Bessee plant.] My work on water pollution led to the “Wastes, Water and Wishful Thinking: The Battle of Lake Erie,” 20 Case W. Res. L. Rev. 5 (1968). My air work led to “The Role of the “Region” in Air Pollution Control,” 20 Case W. Res. L. Rev. 809 (1969). This was based on the work to implement the CAA Amendments of 1967. My work on Ohio’s surface mining led to “Old King Coal and the Merry Rapists of Appalachia”, 22 Case W. Res. L. Rev. 650 (1971). In 1968 I started working to produce the Cleveland Air Pollution Code, which I coauthored with Jim Wilburn; it passed in 1969. My research assistant Jim Walpole became the first lawyer for the Cleveland air pollution program. I was also an advisor to Mayor Carl Stokes, Governor Gilligan and was state campaign chairman for Ray Marvin’s run for attorney general. He lost, but was made the deputy AG for administrative issues, and I continued as an advisor to the AG’s office. 
In 1970 the Ford Foundation fully funded an environmental law program at the George Washington University and I was hired to be the director.
For more on early environmental law teaching, see here and here.

Sunday, October 4, 2015

Roscoe Pound, environmental law professor

In an interesting twist in the discussion on the first environmental law course in the US, Richard Lazarus writes:
When I decided to research the history of environmental law teaching here at Harvard a few years ago, which took me back to David Cavers and into the 1950s, I also decided to follow the “natural resources” thread as well. What I discovered was that Harvard Law School’s first “environmental law professor” based on that broader view was Professor Roscoe Pound (later Dean Pound). Pound arrived at Harvard around 1910 from the University of Nebraska. Pound had a BA/Masters/PhD in Botany. I think he was the first PhD in Botany from the University of Nebraska. He was not a lawyer though he went to law school. His primary interests were mining law and water law. 
Roscoe Pound
Upon arriving at Harvard, Pound taught a course in the fall of 1911 in the “Law of Mining and Irrigation.”  When he became Dean a few years later, he turned both subjects over to lecturers, one taught the mining law class and the other water law. Lucas Bannister, who taught the water law class, was a highly regarded expert in water law from Denver, Colorado. Bancroft Gherardi Davis was the lecturer on mining law.   Each taught the class for a few decades and were highly acclaimed lawyers of their day.
Pound also wrote about water law. One of his most famous law review articles, Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. (1914) concerns legal evolution and what Pound called “The Socialization of Law.” Pound used water law in his article as a primary example of law’s socialization, describing how the need to “protect the general social interest” in water’s reasonable use “is changing the whole water law of the western states.”  He concluded, presciently, “It means that in a crowded world the social interest in the use and conservation of natural media has become more important than individual interests of substance.”
Pound was a complicated guy and some of his later thinking was far less glorious, and worse than that.  But I came across the 1914 article when I first began law teaching (now a few years ago), and have always thought it worth passing on to my students. In some ways, it is reassuring. In other ways, very much not so, because it underscores how long the problems have been known and how hard it has proven to achieve the law reform necessary to address them. Climate change is the latest, of course.
For more on the first course, see here.

Thursday, October 1, 2015

Imperial free trade and the environment on flim

The relationship between trade and the environment is a fraught one; most recently it has been prominent in debates over the proposed Trans-Pacific Partnership.

"Empire Trade", a 1934 British propaganda film, provides some historical context (you can view it at the excellent Colonial Film website; I got to it through a University of Exeter online course on the British Empire). Here low tariffs within the British Empire are touted in terms of the jobs brought to the home country by exports to the colonies and dominions, and the the raw materials from around the empire that feed British industry.

Visually, prosperity at home is represented by belching smokestacks, white-hot furnaces, and smoking locomotives.

"The size, rather than the position of England, governs our greatest national problem today.
We are not a self-supporting country. We depend for our existence on the exchange of our
manufactured commodities for the food and raw materials that we cannot produce ourselves,
and for these we must rely largely upon our Empire and our merchant navy."
And the video tour around the empire is a celebration of exploitation of nature and colonial labor. (Please read the captions, but trigger warning: some of the text is distasteful.)

Rubber plantation in Malaya. "The amount of rubber produced here alone
is nearly twice as much as the rest of the world's output, and so
forms a tremendously important addition to our Empire resources."
Coconut plantation in Malaya. "This chap doesn't have to wait for the fair
and the coconut shies to come to town; he can have 'em for breakfast every morning."
Floating logs in Canada. "The watermen, who see to it that these logs float downstream without
jamming, have an exciting time." A few frames later, some of them fall in the water.
South Africa. "Her most important industries are diamond and gold mining,
both developed by British engineers, equipped with British machinery."
It seems that circa 1934 environmental degradation and exploitation of less developed countries were clearly seen to result from free trade. One might be charitable and say that they were seen as the price that needed to be paid for economic prosperity, but watching this film, one gets the sense that its makers weren't troubled at all by these costs.

Wednesday, September 30, 2015

Air pollution law before the Clean Air Act

Speaking of Julian Juergensmeyer, it's worth taking a look back at an article he and Anita Morse published in the 1968 Valparaiso Law Review, "Air Pollution Control in Indiana in 1968: A Comment". The piece provides an interesting window into what environmental law looked like half a century ago, before the Clean Air Act Amendments of 1970 (which most people think of as simply "the Clean Air Act").

The article discusses federal legislation pushing Indiana to regulate more stringently, state legislation pushing localities to do the same, private rights of action, interstate air pollution control compacts, and the issue of enforcement.

For those who think that environmental law before 1970 was nonexistent or ineffective, here's what the article has to say about water pollution law in Indiana:
The Water Pollution Control Board has been quite successful in coping with Indiana's water pollution problem. A state legislator, Senator Mankin, in a recent comment on the Water Control Board's work has stated: "Since the enactment of the Indiana Law, 170 orders have been issued to municipalities and 85 to industries. As a result of this aggressive enforcement program, 97% of the municipal sewage in Indiana is treated, and 85% to 90% of the industrial waste."
Gary, Indiana
For more on the history of pollution law in Indiana, see here.

Tuesday, September 29, 2015

The first environmental law course

Spurred by Laurence Tribe's claim that he taught the first environmental law class in the US, an environmental law professor list recently discussed what was the first environmental law course taught in the US. Julian Conrad Juergensmeyer noted that he taught a course called the Law of Pollution Control at Indiana University Law School Bloomington in 1966 and 1967, and someone thought that Joseph Sax taught a course at Colorado in the mid-sixties.

David Cavers (U Chicago Photographic Archive)
So far, though, it seems that David Cavers at Harvard was the first (preceding Tribe by at least five years). Based on course catalogs at Harvard, Richard Lazarus found that Cavers taught a course “Legal Protection of Environmental Quality” in 1967, a course in “Government Regulation: Product and Environmental Hazards” in 1965 that focused on “air pollution, water pollution, and atomic radiation”, and a course called “Problems in the Public Control of Atomic Energy” in 1951.

Can any of you think of any earlier classes, including those not necessarily called "environmental law"? What about in countries other than the US? Please comment.

Sunday, September 27, 2015

Japanese water pollution control

The issue of relations between central and local governments has come up a lot on this blog, including in the context of water pollutionWater History recently published Koji Noda's "Water pollution control history in Japan, effluent standards, and central–local government relations", adding a Japanese angle to the mix. The abstract:
Water pollution is a significant environmental problem. Success or failure of water pollution control policy depends primarily on effluent standards, monitoring systems, and central–local government relations. This paper focuses on the relationship between the central government and the Kanagawa Prefecture government in Japan concerning the history of water pollution control policy from the 1950s to the early 1970s. Kanagawa Prefecture is next to Tokyo, and the Kanagawa Prefecture government has been a leader regarding environmental policy at the local level in Japan. This paper examines two aspects of water pollution control history in Japan. The first is the reason behind the implementation of a unique water pollution control policy by the Kanagawa Prefecture government against the central government, although two of its governors were conservatives. In other words, this paper examines what other historical factors exist to promote or formulate water pollution control policy, other than ideology. The second aspect involves examining what central–local government relations mean, how they change, when and how national policy change affects local policy change, and vice versa.
Osaka in the 1960s (OWESA)

Thursday, September 24, 2015

The Old Man and the Sea

I recently came across an unusual blend of environment, law, history--and literature--in Enrique Guerra-Pujol's article, "Misappropriation and The Old Man and the Sea". The abstract:
We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?

Monday, September 21, 2015

Institutions for water control

from  Hoogheemraadschap van Rijnland

Following up on yesterday's post on bonds issued by early modern Dutch water agencies, an earlier post by Rechtsgeschiedenis Blog had the following interesting things to say on water institutions and law:
The peculiar legal nature of Dutch institutions for water control in the broadest sense of the word is their independent origin and – at least to a considerable extent – still independent status. A Dutch waterschap or hoogheemraadschap is not a municipal, provincial or national institution. Some of the waterschappen occupied themselves only with a part of a region, but since a major reorganization in the nineties of the past century only a small number of large water control boards exist, six hoogheemraadschappen and some twenty waterschappen.... A waterschap had and has its own governing body, organizes its own elections for representatives and its board, collects itself special annual taxes, creates its own regulations (keuren), including penalties to be inflicted. In history some waterschappen could even threaten to impose the death penalty for major infractions against its bylaws, for example not complying to orders to repair dikes or not helping against the imminent threat of a flood.
Leiden is situated on a minor branch of the Rijn, the Leidse Rijn. This river gives its name to the hoogheemraadschap Rijnland.... Rijnland has been often the subject of studies and source editions. The oldest surviving registers have been published for the Society for the Study of Old Dutch Law, De oudste bestuursregisters van het hoogheemraadschap van Rijnland (1444-1520). Regesten van de handelingen van dijkgraaf en hoogheemraden, J.H.M. Sloof (ed.) (Leiden 1999). A section of the Rijnland website is devoted to its heritage, with an image database in which you can find also old documents, artefacts, online finding aids and a treasure gallery. One can find further materials for the history of this heemraadschap at the Regionaal Archief Leiden. This archival centre, too, has an online searchable image database. You will find for example building construction drawings submitted to the hoogheemraadschap.
In my opinion creating or having independent institutions for water control is not only a phenomenon for institutional historians but a subject worth of further investigation. This century will witness the growing importance of natural resources, will perhaps even see battles and wars for water, and you are invited to contemplate the example of a region with in this respect a special balance of powers.
I would add that independent institutions for water control is not a uniquely Dutch phenomenon, but one found in many cultures and legal systems - think for instance of irrigation districts, user-owned corporations, or acequias. Though the issue of individual property rights in water gets a lot of attention, in practice water is usually managed and allocated through these collective institutions.

Sunday, September 20, 2015

Yale's Dutch water bond

Courtesy Yale University

The story of the 1648 bond held by the Yale rare books library, on which the university will be paid interest, has been making the rounds. The always erudite Rechtsgeschiedenis Blog (Legal history with a Dutch view) explains:
This week news came out about the upcoming payment of interest to Yale University on a perpetual bond issued in 1648 by a Dutch water authority, the Hoogheemraadschap van de Lekdijk Bovendams. Next week its legal successor, the Hoogheemraadschap Stichtse Rijnlanden, will pay the sum of €136,20 ($154), the interest over twelve years. Yale’s Beinecke Library bought the bond in 2003 as a cultural artefact. 
The website of the Regionaal Historisch Centrum Rjnstreek en Lopikerwaard, the regional archive at Woerden, offers a concise history of this institution. In 1285 a dam had been placed in the Hollandse IJssel to prevent the water of this river to stream into the Lek near the village of Vreeswijk, now a part of Nieuwegein. After floodings in this region of the diocese Utrecht due to neglect of this dam bishop Jan van Diest published in 1323 an ordinance for its maintenance. The schouwbrief of 1323 was followed by more instructions, in particular by ordinances published on behalf of Charles V in 1537. “Bovendams” means “ahead of the dam”, in this case up to Amerongen, to the east, 33 kilometers. From the dam westwards another water authority came into existence dealing with the Lekdijk Benedendams up to the town of Schoonhoven. 
The bilingual website Beursgeschiedenis/Exchange History has a short article showing the 1648 bond is not the oldest surviving one from this hoogheemraadschap, but one from 1624, since 1938 in the possession of the New York Stock Exchange, thus one of the oldest surviving shares worldwide. The 2,5 percent interest yields even today 15 euros. The bonds of 1648 were issued specifically to build a krib, a pier in the Lek near the hamlet of Honswijk, now situated within the municipality Houten. Maintaining such piers and fighting against piers and other structures at the other side of the river kept the hoogheemraadschap busy for centuries.... Like other Dutch water authorities the hoogheemraadschap was an independent authority which could proceed in court against for instance the counts of Culemborg or the States of Guelders. The website for the history of stock exchange does call to attention the fact that even the counts of Holland and the bishops of Utrecht, in medieval times often deadly enemies, both invested money in the maintenance plans of water authorities. 
Some elements in this week’s story need elaboration. You can shake your head in disbelief about a rich university welcoming a payment of just over one hundred dollars, but you might also marvel at the fact of the longevity of institutions vital for the protection of areas threatened by the powers of mighty rivers or seas. Issuing perpetual bonds or rents was not an invention of the Dutch Republic. Medieval rents issued by cities are documented for regions such as Tuscany and Flanders since the thirteenth century. Water authorities could levy taxes to get money, but these taxes were meant to cover the costs of normal maintenance.