Tuesday, November 13, 2018

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:
This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.
Thomas Malthus

Thursday, November 8, 2018

Survey: Top environmental law cases

I'm reposting (with permission) an email I recently got from Jim Salzman (the picture is my own addition):
We are writing to invite you to participate in a survey we trust you will find interesting and fun. In 1999 and 2009, JB Ruhl (Vanderbilt Law School) and I surveyed environmental law practitioners and academics about which Supreme Court cases they thought were the most important to our field. The 1999 results were published in ABA’s Natural Resources & Environment, and the 2009 results were published in ELI’s The Environmental Forum. A decade later, we have prepared the 2019 survey and are eager to see how the data have changed. We intend to publish the results this Winter.
Please click here for the link to the survey. We are posting this information on multiple environmental law list serves and apologize for cross-listings. Please take the survey only once.
We hope you will take the two minutes needed to complete the survey to help give us as much data as possible.  Thanks for your assistance with this! 

Friday, November 2, 2018

Water law in imperial Russia

The current issue of Water History has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917". First, an extract (footnotes and references omitted):
Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply.
Czar Alexander II
The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “contaminating water in places where it was taken for internal consumption by throwing into it harmful substances or in any other way” (ruled in 1871) and obliged local police and municipalities to ensure that “rivers and springs in towns and villages were not polluted.” The Building Statute and the Statute of Industry prohibited the construction of “mills and factories harmful for the purity of air and water upstream of towns.” This norm was inherited from the early nineteenth century and its interpretation and application proved difficult in the later contexts of urban and industrial growth. In 1904, the Senate had to clarify that it applied only to particularly dangerous or poisonous industries, while all other factories could be allowed on condition of proper waste decontamination. 

Tuesday, October 30, 2018

Commons and cognition

Next up in the series of posts on "The Tragedy of the Commons at 50" (the last post is here) is the article of my co-editor for the volume, Carol Rose, "Commons and Cognition". The abstract:
Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in the Prisoner’s Dilemma (a very small commons) would appear to be dominated by distrust rather than the hypothetical herder’s ignorance or indifference. Participants in midsized commons — such as Hardin’s herders in real life — show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues are actually those most likely to exhibit the ignorance and indifference that Hardin attributed to the herder. This Article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” as described by major theorists and concludes with some observations about the cognitive aspects of climate change.
Robert Axelrod, author of The Evolution of Cooperation (1984)

Friday, October 26, 2018

The US Wild & Scenic Rivers Act turns 50

Richard Frank recently posted at Legal Planet on the 50th anniversary of the enactment of the US Wild and Scenic Rivers Act. Some excerpts:
1968 was an especially tumultuous year in modern American history.  The nation endured the assassinations of both Martin Luther King, Jr. and Robert F. Kennedy; then-President Lyndon Johnson announced he would not seek reelection due to growing public dissatisfaction with the government’s conduct of the Vietnam War; and protests and riots consumed Chicago, Detroit, Washington, D.C. and many other American cities.
So it was in stark contrast and a most welcome development when in 1968 Congress passed, and (in October of that year) a lame duck President Johnson signed into law the Wild and Scenic Rivers Act....  The Act represented a major political and conservation achievement 50 years ago.  It remains an important cornerstone of America’s conservation efforts a half century later.
*****
Under the WSRA, rivers are classified as wild, scenic or recreational.  Wild River Areas are those that are free of dams and generally inaccessible except by trails, with watersheds or shorelines essentially primitive and waters unpolluted.  Scenic River Areas are those free of dams and with shorelines and watersheds still largely primitive and undeveloped, but accessible by roads.  Recreational River Areas are readily accessible by road or rail, that may have some development along their shoreline, and that may have undergone past dams and diversions.  Regardless of their classification, each river in the National Wild and Scenic Rivers System is administered with the goal of protecting and enhancing the values that caused it to be designated in the first place.
The WSRA, authored by Senator Frank Church (D-Idaho), was a legislative response to the fact that in 1968, many if not most of America’s rivers were already dammed for hydroelectric and flood control projects.  (By comparison to rivers designated under the WSRA, more than 75,000 large dams in the U.S. have modified over 600,000 miles of American rivers.) 

Tuesday, October 23, 2018

Indigenous peoples, political economists and the tragedy of the commons

Next in our series on "The Tragedy of the Commons at 50" (the last post is here) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons". The abstract:
In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbounded wilderness placed at the disposal of frontiersmen. Though he eventually acknowledged the existence of managed commons, he had little interest in community rules pertaining to resource exploitation. For him, these were simply moral norms which inevitably became ineffective after a community reached a certain level of population. He also took economists to task for failing to include in their analysis the true environmental and social costs of public decisions. Still, the famous example of the indigenous people of Northeastern Quebec illustrates a shortcoming of his analysis: community members did not act in total isolation from each other. On the contrary, communal norms could prevent an overexploitation of resources or allow for the adoption of corrective measures.
Beaver Hunting in Canada,
from Charles Theodore Middleton’s A New and Complete System of Geography…, after Chiedel, 1777-1778
(Library and Archives Canada)

Wednesday, October 17, 2018

Law and environmental-technological change

Construction crane at Norris Dam (TVA) (Currents of Change)
Yesterday's New York Times had a piece by Naomi Oreskes and Erik Conway on the need for government help in making the technological transformations necessary to avert disastrous climate change - in particular, phasing out fossil fuels by the year 2050. They write:
None of the major technological transformations of the 19th and 20th centuries were the product of the private sector acting alone and responding only to the market. Railroads, radio, telegraph, telephone, electricity and the internet were all the result of public-private partnerships. None was delivered by the “invisible hand” of the marketplace. All involved significant interventions by the visible hand of government.
What does this mean for us? Right now, government is widely seen as inefficient and ineffective, and our needs are thought to be best addressed by the private sector, through entrepreneurship, venture capital and Silicon Valley-style “disruption.” But unless we acknowledge the need for a substantial government role, we are going to be stuck, because change driven solely by the marketplace is unlikely to suffice.
Some might object that our current challenge is vastly different from those met by past technological changes, because we’re not just talking about a thing, like a radio or cellphone, but about changing our entire energy system. But these earlier transformations involved systems, too. Just as energy technology isn’t one thing, neither were the railroads, radio, electricity or the internet. Those systems all involved many parts, including federal, state and local policies to support them (the land grants that made the railroads possible, for instance, or role of the Federal Trade Commission in licensing radio and television stations). 

Friday, October 5, 2018

The roots of Ostrom's commons work

Continuing the series on "The Tragedy of the Commons at 50" (the last post is here), Fabien Locher's "Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)" provides interesting historical context for the work of Ostrom and the huge body of commons studies she inspired. The abstract:
The goal of this article is to write a social and political history of the now preeminent approach to the ‘commons’ institutions, by focusing on Elinor Ostrom’s contributions to its development. My methodology is that of Science and Technology Studies (STS). I focus here on the materiality of E. Ostrom and her team’s research practices (fieldwork, data collecting, indexing and analysis), on their intellectual and institutional strategies, their networking practices, how their research was funded, and their interactions with administrative and academic institutions and actors (USAID, NSF, National Academy of Sciences). I analyze the history of the Workshop in Political Theory and Policy Analysis, the research center that E. Ostrom and her husband Vincent founded and animated for some 40 years at Indiana University, Bloomington. By doing so, I hope to be able to analyze the close ties between the form and content of the Ostromian theories on the commons and the main lines of tension in the U.S. society of the 1970s and 80s that saw their emergence: urban crisis and “neighborhood revolution”, increasing distrust of modernization and centralization ideals, mutations in U.S. development policies and doctrines, rise of neoliberalism.

Wednesday, October 3, 2018

Cronon and commodification

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential Nature's Metropolis (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts:
[Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries.
This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica. The most important distinction, perhaps, was between the human and the nonhuman: proletarianization is, after all, a human process.
Commodification, on the other hand, tends to overwhelm distinctions, starting with the human-nonhuman: while only humans can be proletarianized, everything can be “priced”—placed in a relationship with other things that can be expressed in terms of a number. Even more, while the process of proletarianization seems never to engulf the whole of a person (see my argument in this post), commodification assimilates both individual humans and their internal qualities to a system of commensurable valuations: your cheerfulness as well as your blood pressure, your knowledge of Latin as well as your attention can all be denominated in dollars, no different from a television or a ticket to a concert.
In this way, the story of commodification flattens distinctions between humans and the (rest of the) natural world, demolishing proletarianization’s marked anthropocentrism. Putting a price on human lives or health or knowledge or creativity and putting a price on a chair or a car is one single continuous process; as much as labor could be abstracted as just one more input or one more production cost, the story of making humans into proletarians was always distinct from—if parallel to—the story of extracting value from the natural world.
There are various ways to account for this shift in historical narration away from proletarianization’s anthropocentrism. Certainly, the influence of environmentalism has something to do with it. While very much leftist critique descending from Marx is (still) only fitfully cognizant of ecological critiques of capitalism, some of the ontological premises of an ecological worldview have seeped into culture so generally that an older stark separation of the human and the nonhuman is no longer tenable.
Another possible explanation comes from the small explosion since the 1990s of works in the subfield of what Lorraine Daston has dubbed “historical epistemology,” which as Sklansky defines it is the study of “the invention of new kinds of fact such as employment figures and credit ratings along with the modern metrics and matrices that produced them” (Sklansky, “Elusive Sovereign,” 242). Offspring of the history of science, studies in this vein emphasize the ways that quantification and abstraction have profoundly reshaped the image of “the human,” creating what Dan Bouk has called the “statistical individual.” Incarnated in numbers, this creature can float freely as part of a universe of endlessly adaptable equations: where the human worker needs to occupy a certain place in the production process, the statistical individual can be plugged in far more flexibly at many points in a firm’s calculations and predictions.
*****
The other week on Twitter, Eli Cook pointed out one possible source of inspiration for a generation of historians, one reason why folks who entered graduate school from at least the mid-90s through the present might have had commodities on their minds. That source is a single chapter in a single monograph: the grain chapter of William Cronon’s Nature’s Metropolis (1991), Chapter 3. 

Sunday, September 30, 2018

Regulation and representation in Commissions of Sewers

The English Commissions of Sewers remain a fertile source of scholarship (for earlier posts see, e.g., here and here.) Last year Environment and History published John Emrys Morgan's "The Micro-Politics of Water Management in Early Modern England: Regulation and Representation in Commissions of Sewers". The abstract:
Early modern water management was as much a social and political endeavour as an environmental one. This paper explores this assertion by analysing the different forms of knowledge used by English Commissions of Sewers in the governance of flood defence and drainage in the sixteenth and seventeenth centuries. Using examples drawn primarily from Gloucestershire and Lincolnshire, in south-west and eastern England respectively, this paper traces the rise and decline of popular influence over water management. Where Commissions of Sewers operated harmoniously, they were staffed by significant numbers of local people, who valued their right to participate in water management. With the involvement of large numbers of 'ordinary' people, Commissions of Sewers, and particularly the minutes of Courts of Sewers, became repositories of oral and customary knowledge about the functioning of local drainage networks and flood defence schemes. However, the paper argues that, over time, as customary knowledge that was divulged and negotiated orally became codified, and decisions about water management became founded on textual precedent, those who lacked access to textual resources lost influence over water management decision making.