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.

Friday, September 28, 2018

The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:
Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

Sunday, September 23, 2018

Regional planning in a decentralized state

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland". The abstract:
This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs; the proportional division of the costs; and the use of compensation for damage suffered. These practices respected local autonomy and broadened the level of support among the local stakeholders. The effectiveness of the practices was strengthened when they were used in combination with a technique provided by the Habsburg state: the enqueste or inquiry. This was a technique for gathering reliable, relevant and detailed information at the local and regional level. In this case study, the information on landscape and water use, collected by the 1544 Commission of Inquiry, facilitated cooperation between communities that enjoyed a high degree of self-governance.

Friday, September 21, 2018

Cold-War commons

Next in the series of posts on "The Tragedy at 50" (the last one is here), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space". The abstract:
Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedies, central to a post-Cold War project of advancing “market democracy.” Meanwhile, the notion of an “illiberal commons” stands ready for redeployment in future situations conceived as tragically problematic.

Wednesday, September 19, 2018

Historical analysis in environmental law

I'm pleased to announce that The Oxford Handbook of Legal History, edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here. The book is available both in print and online. I'd be happy for any comments on my paper!

Friday, September 14, 2018

Free the beach

The Boston Review recently published Andrew Kahrl's "Free the Beach", an essay adapted from his Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism:
For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois, which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity.
Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at high tide, others at low tide, still others at the vegetation line—and devised different definitions of what constituted legitimate use of the public’s shore. Some states conceived of the public’s right to the shore in broad terms. Other states hewed closely to the public trust doctrine’s original intent. Massachusetts and Maine, for instance, held that the public’s right to the foreshore applied only to fishing and navigation; that private ownership extended down to the low-water line; and that the recreational use of private property was tantamount to an unconstitutional taking of private property. Connecticut drew the line between public and private property at the mean high-water mark, and its courts recognized swimming and recreation as legitimate uses of public trust lands.
While Connecticut’s supreme court upheld the public status of the foreshore, the actions of shoreline developers, backed by the state legislature, made it increasingly difficult for members of the public to enjoy their beach access rights. Beginning in the 1880s, wealthy families began building summer cottages along remote sections of shore in the state’s eastern half. In 1885 the state legislature granted a charter to a group of families who owned cottages in Old Saybrook. The charter gave the Fenwick Association the power to levy its own taxes and enact zoning restrictions. During the late nineteenth and early twentieth centuries, other small groups of families successfully petitioned the state legislature for charters to form what came to be known as private beach associations. Many of these early beach associations formed as an expeditious way of meeting the basic needs of summer homeowners in remote, undeveloped areas lacking in basic infrastructure and services. 

Tuesday, September 11, 2018

The water commons beyond property and sovereignty

Irrigation canal in Provence
Continuing the series of posts on "The Tragedy at 50" (the first one is here), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty":
Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public.