Tuesday, January 16, 2018

Historical analysis in environmental law IV: What is to be done? - The commons, forest law, and police

At the end of the previous post in this series I argued that the history of environmental law remains in need of extensive work both in uncovering the legal roots of contemporary environmental law and in making the lateral connections between historical environmental law and other historical topics.

I would like to suggest that of these two dimensions—we might think of them as longitudinal and lateral—the first order of business should be longitudinal, deepening the temporal dimension of environmental law. We will be hard pressed to assess the significance of historical environmental law or its interactions with other areas of law and life without knowing what it was or what people thought about it. However, given that 'environmental law' is a recently coined term, where are we to look for historical environmental law? I will offer several directions of inquiry, some of them already explored by environmental and other historians, though often without the sensitivity to legal dimensions that might be expected were more legal historians to take up the task. (Not all work on historic environmental regulation is necessarily relevant to understanding the sources of current environmental law. For instance, scholars have investigated environmental regulation in Roman law and in Jewish law, but it would be difficult to claim that these ancient legal systems were the source of modern environmental law.)

One obvious place to look is to the history of that most well-worn of metaphors for environmental problems—the commons. As is well known by now, the actual medieval and early modern European commons caricatured in Garrett Hardin's parable of the tragedy of the commons were not the rule-free disaster zones he depicted, but rather highly regulated sites of interaction between humans and nature. Environmental historians have studied the laws governing the woodland and pasture commons, though not necessarily in the framework of 'environmental law' or with an eye to the type of questions a lawyer might ask of the sources. In particular, historians of environmental law might want to investigate broad issues such as the conceptions of law, justice, right, and property reflected in the commons regulations, as well as narrower ones such as the types of rules, standards, adjudicatory procedures, and remedies applied to various forms of environmental conflicts and their possible influence on later legal rules.

For instance, the principle of 'necessary use'—'that the actions of others should not deprive one of the basic materials needed to sustain one’s enterprise'—was apparently ubiquitous in early modern German commons by-laws, as it was in the rules governing water allocation in the nineteenth century western United States. It is also arguably the motivating principle behind the feasibility standard so pervasive in modern environmental regulation, which requires a polluter to use the best available technology only to the extent it is economically feasible. While a theorist might use this commonality to support a normative or positive argument about property in natural resources or pollution regulation, a historian might profitably search for the common roots of these norms or the paths through which they travelled in time and space, and the ways people justified or criticized them over time.

Moreover, legal fights against enclosure of the commons were clearly a precursor of more recent legal protections for open spaces, an alternative source to the commonly accepted stories about the Romantic and preservationist roots of this area of law, and one with a more socially-oriented tint. Investigation of the commons preservation movement and anti-enclosure movements in general are likely to yield insights into the political valence of some of the historical building blocks of environmental preservation law.

A related field demanding study is forest law. It is practically a commonplace among environmental historians that the concept of sustainability, so central to contemporary environmental law, originated in early modern forest management, and historians have shown that intensive forest regulation in Europe goes back to the medieval period. Environmental historian Richard Grove has made the connection between colonial forest management and concerns over climate change, and my own work has connected this concern to colonial forest regulation. E.P. Thompson's Whigs and Hunters highlighted the way early modern English forest law was both a tool of enclosure on behalf of landed elites and a site of resistance for commoners, and similar points have been made about English law in the medieval periodOther works have examined the historic interplay of private, common, and state property in forests and varying conceptions of conservation that were expressed in their regulation. These are all themes that continue to resonate in modern environmental debates. Further research might shed light on how forest law variously worked to preserve forests or facilitate their destruction, as well as on how this regulatory field influenced other areas of environmental law, including modern debates over the commons and enclosure.

Both these bodies of law are connected to a third, broad one (though some would deny it the distinction of being considered 'law'): so-called 'police' regulation. This flexible and capacious form of regulation, justified in terms of its promotion of good government and the common welfare, has had many points of contact with environmental issues since early modern times, through its protections for public health and safety and rules for management of natural resources.

In the next post, I'll give my take on Markus Dubber's attack on police regulation, and discuss further places to look for the history of environmental law.

Sunday, January 14, 2018

Water law in Star Chamber

‘A plotte of the landes about Ashebourne’, Derbyshire. 1556–1557
(Folger Shakespeare Library)
One difficulty of English water-law history is the dearth of reported water cases predating the nineteenth century. Fortunately young historians are doing good work in digging up archival documentation of water litigation. We heard a few years ago from Leona Skelton about her interesting work on the Tyne River Court, and now I'd like to note Lehua Yim's work on a sixteenth century water law dispute litigated in the Court of Star Chamber: "A Watercourse ‘in Variance’: Re-situating a Sixteenth-Century Legal Map from Ashbourne, Derbyshire", published last year in Imago Mundi. The abstract:
Law-related English local maps, especially those dating from the early- to mid-sixteenth century, remain in need of both extensive and close study. In this article, a hand-drawn sketch map in the Folger Shakespeare Library, Washington, DC, is re-contextualized in relation to documents connected with lawsuits in The National Archives in England. These lawsuit documents, concerning disputes brought before the court of the Star Chamber in the mid-sixteenth century, allow us to correct the accepted date of the map’s creation, suggest its likely creator and identify its probable use at a time of expanding cartographic consciousness among the educated classes. The importance of the manuscript map to one English family’s subsequent assertions of proprietary rights in a small stream running from Bradbourne to Ashbourne, Derbyshire, explains its provenance outside official court records.
Star Chamber has gotten a bad name in the last few hundred years, especially in the US, but it was an important court in the early modern period, capable--as Yim's article shows--of providing justice where the common law courts could not.

Tuesday, January 9, 2018

Historical analysis in environmental law III: Winds of change

In the previous post in this series I discussed the seeming lack of interest of legal historians in environmental angles. Nonetheless, recent years have seen deepening interest in the history of environmental law, with a few scholars highlighting the connections between the supposedly foundational environmental legislation of the 1970s and earlier law. One prominent work in this genre of pushing back environmental law's start date is Karl Boyd Brooks's Before Earth Day. Brooks's book is notable not only for identifying the statutory precursors of modern environmental regulation, but for its attempt to trace the manifold legal, personal, and institutional connections between legislation and litigation, and between pollution control law and the law of nature protection, two areas of modern environmental law that might be assumed to have distinct, even antagonistic, origins.

Another front opened recently regards the relationship between modern environmental law as it coalesced in the 1970s and the New Deal administrative state. On the one hand, Arthur McEvoy has argued that environmental law was a project of the New Deal regime, and that after the early 1970s it declined along with the wider regime. On the other, two recent articles have argued that the environmental law of the 1970s marked a break with New Deal liberalism. Paul Sabin explains the era's public interest law organizations as growing out of environmentalists' increasing disillusionment with the state as an engine of public-minded environmental protection, spurring a turn to an oppositional and litigious stance. Jedidiah Purdy, meanwhile, sees the salient federal legislation of the 1970s and the organizations that grew up around it as departing from an earlier tradition that viewed environmental issues in a wider context of social and economic justice. Mainstream environmental lawyers, he argues, were lulled by the shrinking economic inequality of the postwar period into focusing on elite and professional advocacy and environmental issues narrowly defined, forsaking issues, such as the disproportionate impacts of environmental harms (and environmental regulation) on minorities and workers, that would later come to be labelled 'environmental justice'.

Yet while these works do the valuable service of suggesting connections to wider themes of legal history such as the rise of—and reaction to—the administrative state, they push back the start of environmental law by only a few decades. They also make no connections to environmental regulation before the twentieth century, outside the US, or indeed outside the arena of federal regulation.

It bears noting that the relative dearth of historical work on environmental law, as well as the relatively narrow jurisdictional and chronological frames of what work there is, are far more marked in the American context than in the European. For instance, scholars have produced a significant body of work on French regulation of early industrial pollution, and quite a few British legal historians have given significant attention to environmental issues. Noga Morag-Levine's work has bridged some of these bodies of scholarship, compellingly arguing that English and Continental approaches to pollution control in the nineteenth century continue to inform current American debates over issues such as the appropriateness of the precautionary principle or feasibility standards. The blindness as to the history of environmental law may be a particularly American disease. (To the extent it is, this exceptionalism is itself a topic worthy of research).

The work that perhaps treats American environmental law in the most comprehensive manner is Betsy Mendelsohn's chapter on law and the environment in The Cambridge History of Law in America, which notes in its opening section:

Sunday, January 7, 2018

Grotius and Kant on original community of goods and property

The latest issue of Grotiana (noted by Legal History Blog) has an article by Sylvie Loriaux, "Grotius and Kant on Original Community of Goods and Property". The abstract:
Immanuel Kant
This paper is interested in the critical potential of the idea of original common possession of the Earth. On the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, it shows how different the meaning of this idea can be within a theory of property or territory. The first part is devoted to Grotius’s account of why and how the institution of property was progressively introduced. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a law is not completely absent from, and even plays a crucial role in, his account of property. Clarification of this role ultimately leads us back to the idea of original possession in common of the Earth.

Thursday, January 4, 2018

Historical analysis in environmental law II: "The one came not near the other all the night"

Edvard Munch, Separation (1896)
(Continuing the series on historical analysis in environmental law. Links to the full series and the article are here.)

In May 2010 Environmental History, the leading journal in its field, published an article by Aaron Sachs on antebellum environmental thought as expressed in contemporary American cemeteries. A few months later legal historian Alfred Brophy published a blog post on American antebellum constitutionalism as expressed in speeches made in cemeteries. Though both pieces focused on the same cemeteries, with rich discussions of the political, social, and cultural contexts in which they operated, neither work made any reference to the other, nor, indeed, to the literature or historical sub-discipline in which the other was located. Three years later, both pieces were released in expanded form, again with no interaction between them or their scholarly worlds.

This was not an isolated (non-)incident. Though the fields of environmental history and legal history seemingly share a wealth of common interests—the histories of capitalism, slavery, and the administrative state are a few of the topics receiving intense attention in both fields in recent years—the two fields move through parallel intellectual universes with nary a glance at one another.

If there is a certain symmetry in the blissful ignorance in which each field operates with regard to the scholarship of its sister field, the same cannot be said of the relative interest each takes in the subject matter of the other. In the last decade (2007-2016) Law and History Review, the leading English-language legal history journal, published only three articles that might be described as engaging with environmental issues; and only one of these—its author an environmental historian, not a legal one—was directly on an environmental topic. Meanwhile the situation in Environmental History, the leading journal in its field, in the same period was radically different; counting conservatively, over twenty-five articles in this journal engaged significantly with legal issues, on a wide variety of topics, including a collection of essays dedicated to a single environmental statute. A similar picture emerges from an examination of leading European journals in the two fields: On the one hand, Journal of Legal History with two articles dealing with issues of public property that might be tagged as environmental and Rechtsgechichte with three on environmental topics; on the other, Environment and History with close to thirty articles with significant treatment of legal issues.

Tuesday, January 2, 2018

Water services - the Scandinavian model

I recently came across Tapio Katko's Finnish Water Services: Experiences in Global Perspectives (Finnish Assn. of Water Utilities, 2016). It's been reviewed in several journals; here are some excerpts from Glen O'Hara's review in Scandanavian Economic History Review (references to page numbers omitted):
Particularly impressive sections include those on the post-Second World War growth of transnational water governance systems through the auspices of the United Nations, including the International Hydrological Decade of 1965–1974, the subsequent International Hydrological Programme and the regional Baltic agreements that followed the UN Conference on the Human Environment in Stockholm and then, in a further burst of maritime co-operation, after the end of the Cold War in the early 1990s.
Perhaps because of Finland’s small population, and her traditional Nordic role within the international aid and development network, the international situation plays a key role in this book. The spread of integrated Water Management Systems via observation of other countries’ examples, and the role of international bodies such as the Organisation for Economic Co-Operation and Development in defining good governance, are usually to the fore – or at least mentioned – in a compelling narrative of how policy actually works in practice....
Finland, of course, is a country where water systems have for the main part remained in the public, and usually in the municipal, sector: though as Katko acutely points out, that still means that Finland’s water concerns spend a great deal of money in the private sector through the services, equipment and goods that they necessarily consume. As in other countries, charges have mainly paid for Finnish water supply, with direct government support remaining rather low, and in recent years declining further. Capital investment, including in Finland’s far north, was the main intervention mounted by the government: all interesting sidelights on a Nordic economic and social system that depended much more on concert and co-ordination than on massive continued budgetary support, whatever the ubiquity of these states’ image as a type of social democratic utopia outside their borders. 

Sunday, December 31, 2017

Historical analysis in environmental law I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

Friday, December 29, 2017

The commons imaginary

I recently came across what seems to me a really important article, John Wagner's "Water and the Commons Imaginary", published in 2012 in Current Anthropology (along with a series of responses by other social scientists of the commons, including Elinor Ostrom, in what must have been one of her last writings). The abstract really doesn't do justice to the article's central argument, so I'll bring some excerpts here (citations omitted):
The term “commons” has been appropriated over recent decades by individuals, corporations, and interest groups seeking to benefit from the positive emotional responses that the term seems to evoke. In some cases—shopping commons, for instance—use of the term appears to be mainly a marketing strategy, but in other cases the term carries a definite political argument, most typically an argument against commodification, privatization, or enclosure and in favor of egalitarian, grassroots approaches to resource management. It is at this point that a clear break occurs between commons as a particular kind of institutional arrangement and commons-as-social-imaginary.
In applying the term “social imaginary” to the commons, I rely especially on the work of Benedict Anderson on imagined communities and of Appadurai on imagination and globalization. Commons constitute a very different kind of imagined community than a nation-state, but much of Anderson’s analysis is applicable nevertheless.... 
The commons imaginary can... be understood as a response to... fundamental changes in our social, economic, and political lives, particularly those associated with economic globalization, the accelerated pace of erasure of place-based communities and social identities, and global environmental and economic crises. The commons imaginary, like the nation-state, is also dependent for its construction on print and electronic media. The recent proliferation of the use of the term “commons”... clearly attests to the manner in which it is being constructed.

Wednesday, December 27, 2017

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.
South African Constitutional Court
A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

Monday, December 25, 2017

The redwood wars

The latest American Historical Review has a review by Neil Maher of Darren Speece's Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts:
Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign over redwoods. The legal stalemate that resulted, Speece concludes, fostered “the Deal” orchestrated by President Bill Clinton, which not only protected the old-growth redwoods of the North Coast’s Headwaters Forest but also laid the groundwork for additional protection of endangered landscapes nationwide.
Defending Giants is about more than environmentalists, however, and in order to give voice to the lumber executives, loggers, and lawyers who also serve as foot soldiers in this conflict, Speece embraces a diverse set of historical methodologies. To understand the grassroots beneath his tall trees, he scours local newspapers, digs into unprocessed archival material from North Coast environmental groups, and, perhaps most importantly, conducts dozens of oral interviews with activists, timber workers, lumber company managers, and forest policy bureaucrats. Speece also skillfully navigates a torrent of legal cases initiated by environmentalists to halt redwood logging, and tracks a wide range of timber policy proposals through the hallways of capitols in both Sacramento and Washington, D.C. Finally, he carefully balances his narrative by analyzing the annual reports of the Pacific Lumber Company, which owned these redwood forests, of its successor, the Maxxam Corporation, and of several other timber businesses from the Pacific Northwest. The result, which successfully blends social, political, legal, and business history, will interest more than environmental historians.