Tuesday, January 10, 2017

In search of post-Brexit England

I highly recommend reading a beautiful piece by Helen Macdonald just published in the New York Times Magazine, "In Search of Post-Brexit England, and Swans". The story opens:
In the days after the Brexit vote last year, I became obsessed with an oil painting called “Swan Upping at Cookham” [below, Stanley Spencer, 1915-1919], which portrays a scene from an ancient and colorful English tradition. “Swan Upping” refers to the annual summer voyage of a flotilla of wooden skiffs that sets off from the town of Sunbury-on-Thames on a five-day journey to catch all the swans on the upper reaches of the River Thames. The crews check the parentage of young birds and place a mark on them to claim their ownership: Some belong to the queen, others to the Worshipful Company of Vintners and the Worshipful Company of Dyers, two ancient trade guilds based in the City of London. The painting depicts a traditional stop on the uppers’ trip. Here is the river and the Ferry Inn, wooden punts, moody clouds, women carrying cushions, a fretted iron bridge and a swan bound and hoisted in coils of rope and canvas, white neck craning from a man’s shoulder.

After some interesting background on the painting and on the place of these swans in English national mythology, Macdonald explains more about the legal historical background of the "upping":

Friday, December 30, 2016

Was zoning constitutional?

A while back I promised more on John Nolon's series on zoning's centennial, so here are some excerpts from his Part 3: "Zoning was Contagious, but was it Constitutional?":
By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.”  Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”
Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.
In the leading case of Village of Euclid v. Amber Realty Co.:
The Court noted that ”while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” 
(Chad Felton — The News-Herald)

Tuesday, December 20, 2016

Treaty rights, fish harvesting, and toxic risk

Symbolic Petition of Chippewa Chiefs, presented at Washington, January 28, 1849,
headed by Oshcabawis of Monomonecau, Wisconsi
In the latest development on the history of Indian treaties and the environment (see also, for example, here and here), the new issue of Water History has an article by Valoree Gagnon, "Ojibwe Gichigami (“Ojibwa’s Great Sea”): an intersecting history of treaty rights, tribal fish harvesting, and toxic risk in Keweenaw Bay, United States". The abstract:
Ojibwe Gichigami (“Ojibwa’s Great Sea”) is the spirit name for Lake Superior; it is also the homeland of the Keweenaw Bay Indian Community (KBIC) where Gichigami fishing has sustained the people for nearly a millennia. As signatories to the 1842 Treaty With The Chippewa, the KBIC retain rights for hunting, fishing, and gathering, and worship within ten-million acres of ceded land and water territory. However, due to elevated levels of toxics such as methyl-mercury and polychlorinated-biphenyls (PCBs), Lake Superior is currently under numerous fish consumption advisories that inform the public of harmful contamination levels. Thus, harvesting provides socio-cultural and spiritual wellbeing for the KBIC, and simultaneously, places their physical health at great risk. By using ethnographic methods and oral histories, this article illustrates how an intersecting history of KBIC treaty rights, tribal fish harvesting, and toxic risk is the center of their water story. Over the course of several decades, they have encountered dire consequences due to federal assimilation policies, state regulatory control over their harvesting, and environmental degradation and contamination. KBIC present-day perspectives of toxic risk are rooted in this history. In 1971, the Michigan Supreme Court presented a landmark decision: the People v. Jondreau reaffirmed 1842 treaty rights for the KBIC. This precedential decision was followed by Great Lakes states issuing the nation’s first fish advisories. The KBIC historical context is imperative to understanding present day environmental policy and its relevance (or irrelevance) for those most at-risk, emphasizing how social injustices are manifested through a people’s water history.

Thursday, December 15, 2016

More on forests in revolutionary France

Vallée de La Loue - ©CRT de Franche-Comté
H-Environment just published a roundtable review of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015), previously covered here. Some legal highlights, starting with Caroline Ford's comments:
The book is based on a wealth of archival material and primary documents that Matteson found in both national and provincial archives in France. She sorts through and illuminates very technical modes of forest management, while setting the scene for conflicts between local communities and the French state in masterful ways. She seeks to explore reform efforts on the part of the state as well as the ideological agenda of lawmakers, landowners and commentators in order to explore both the successes and failures of natural resource allocation and environmental conservation in the context of sweeping revolutionary change and the expansion of state power. She examines a number of important questions in this regard including why conservation policies prompted resistance; and how customary rights were supplanted by those of private property. To this extent she resuscitates a debate, which has recently again become the focus of some attention among environmental historians in France on the “tragedy of the commons,” which was sparked by Garrett Hardin’s 1968 article in Science and Elinor Ostrom’s rebuttal (among others).
The great strength of Matteson’s close study of the Franche-Comté lies in grounding her work in a micro context, in a specific time and place. She shows the very real impact of policies enacted in the capital on a rural region of France, but one wonders how and whether imperial conquest that began during the period which she explores and French encounters with other forested landscapes shaped (or did not shape) policy in the metropole, a subject explored in Richard Grove’s path-breaking Green Imperialism. Matteson mentions, for example, that the French forest code was exported wholesale to Algeria at the time of conquest, where conditions were far different from those in metropolitan France. Many foresters served in both France and in her colonial possessions. This code was finally revised in 1903, and one wonders about the extent to which foresters considered and compared colonial and metropolitan forests and landscapes. 
Finally, calls for saving forests came from other quarters and were articulated less in terms of conservation than in terms of heritage preservation and patrimoine. These calls came not from engineers, scientists, or foresters but from a middle class urban public. It was the Barbizon school of painters who were behind Napoleon III’s 13 August 1861 decree that created the first protected natural landscape in the forest of Fontainebleau as a réserve artistique, and the painters fought pitched battles with foresters, who defended their own conservationist initiatives, such as planting pines. Both made claims about protecting the forest, but in very different ways.

Sunday, December 11, 2016

Trends in environmental regulation

(Fortnightly Magazine)
The 2016 Annual Review of  Law and Social Science had an article by Neil Gunningham and Cameron Holley, "Next-Generation Environmental Regulation: Law, Regulation, and Governance". Once you get passed the odd description of environmental law, along with design standards such as best available technology, as "conceived in the 1970s" and the odder tracing of the origins of command-and-control regulation to the creation of Yellowstone National Park in 1872, the article goes on to map the changes in environmental regulation in recent decades. The abstract:
This article analyzes more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It shows how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved — their most important manifestations being pluralistic regulation, new technologies, compliance, and new governance. It shows how each of the frameworks examined proposes its own solutions and has something valuable to offer, as well as its own limitations. The article concludes by discussing a fundamental challenge confronting the field, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrum.
The authors' evaluation of the attack on traditional regulation in recent decades (citations omitted):
Broadly speaking, these state-centered approaches to law were relatively effective, achieving several gains in halting and reducing environmental degradation. Indeed, a range of findings suggest that state law approaches are the single most important driver of improved environmental performance, particularly of large industries. 
Nevertheless, by the 1980s direct law was widely criticized for being inflexible and excessively costly. At the international level, treaty congestion and fragmentation led to claims that international environmental law was unwieldy, incoherent, and ineffective in confronting increasingly serious global environmental challenges. Similar claims were raised at the domestic level, where the centralized and uniform nature of command and control was increasingly maligned as costly, cumbersome, inefficient, and insensitive to local contextualities.
A major source of these command-and-control critiques were business groups, who called for a reduction in the economic burdens that compliance with environmental law placed upon them. Adversarial enforcement by deterrence-oriented agencies, primarily in the United States, did little to allay these concerns and produced counterproductive resistance from regulated businesses and individuals.

Friday, December 9, 2016

Ecology and procedure in the history of ecosystem management

A while ago we noted a review of James Skillen's book on the US Bureau of Land Management. Now American Historical Review has a review by Leisl Carr Childers of Skillen's latest book, Federal Ecosystem Management: Its Rise, Fall, and Afterlife (University Press of Kansas, 2015). Childers writes:
Divided into two parts and featuring three case studies, Federal Ecosystem Management examines the historical contexts of ecological science and public administration from which ecosystem management emerged in the 1960s and 1970s and analyzes its implementation during the George H. W. Bush and William J. Clinton presidential administrations. According to Skillen, the National Environmental Policy Act (NEPA, 1969) and the Endangered Species Act (ESA, 1973) formed the cornerstones of ecosystem management. These legislative mandates did not systematize ecosystem management; rather, they allowed federal land management agencies to implement two competing versions of the paradigm. Ecosystem management, undergirded by the ESA, focused on achieving substantive goals that married ecosystem protection with resource development and provided a dynamic process through which land managers could respond to the constantly shifting complex of ecological systems by continually adapting their management plans to reach a specific goal. In contrast, ecosystem management relied on NEPA and concentrated on achieving procedural goals by using scientific assessment and open, democratic deliberation. In this version, gathering scientific information and using public input to shape management decisions continued to ensure sustained yield in natural resource development.
Yet without a clear legislative mandate to guide the process, the application of both versions of ecosystem management was as varied as the missions and cultures of the land management agencies that employed them. In case studies on the Greater Yellowstone Ecosystem, where the Forest Service and National Park Service first attempted collaborative projects that utilized the paradigm, and the Northwest Forest Plan and the Interior Columbia Basin Ecosystem Management Project, which emphasized the substantive and procedural versions of the paradigm respectively, Skillen deftly demonstrates the political difficulties surrounding the actual implementation of ecosystem management. In no context was either version of the paradigm truly operational, and the tension between the two variations has perpetrated increasing political polarization. Nevertheless, Skillen leaves readers with the sense that despite its failure, the basic tenants of ecosystem management remain.

Friday, December 2, 2016

Lessons from environmental history

I recently came across Erik Podhora's "Lessons for Climate Change Reform from Environmental History: 19th Century Wildlife Protection and the 20th Century Environmental Movement", published in last year's Journal of Environmental Law and Litigation. The abstract:
The prospect of national climate change legislation currently seems dim, but protective legislation for the natural environment has not always been out of reach. State wildlife laws of the 19th century demonstrated that concerted action could persuade state legislatures to shift away from the fundamental paradigm of unregulated hunting when the declining populations of many species caused public alarm. Nearly a century later, in 1969, several high-profile incidences of acute pollution occurred, and a widespread environmental movement blossomed that prompted a previously indifferent President to champion the call for environmental policy. If this pattern held true, unusually strong storms or wildfires of increasing frequency and intensity in recent years should have generated public support for legislation to combat climate change. However, climate change reformers in the 21st century have not been able to convince Congress to seriously consider remedial legislation. This Article explores the factors that contributed to the success of the 19th century state wildlife movement and the 20th century environmental movement in order to better understand what climate change reform efforts may be missing.

Sunday, November 27, 2016

Legal history of the Scheldt

Fragment of an engraving by F. Galle, ca 1580
(Bergen op Zoom in Pictures)
Otto Vervaart's Rechtsgeschiedenis Blog recently posted on "The Schelde river, a disputed boundary", examining, among other sites, the Scheldt River Collection of the Peace Palace Library. Vervaart gives some background (the river is called Schelde in Dutch and Escaut in French):
The navigation on the Schelde had been already an issue long before the Belgian independence in 1839. During the Dutch Revolt in the sixteenth century the blockade of the Schelde massively damaged the trade to and from Antwerp, and prompted many Flemish merchants to go to the North. Amsterdam’s growth in economic power around 1600 is to a substantial degree due to an influx of merchants from Flanders, their talents and networks. However, this period does not come into view in the digital collection. The Peace Palace Library has digitized books from its own collection. Apparently fifteen works from 1784 and 1785 are the earliest available. Among these works is a treatise by someone more famous for his role in French history. Honoré Gabriel de Riqueti, comte de Mirabeau (1749-1791) published a treatise with the title Doutes sur la liberté de l’Escaut, réclamée par l’empereur; sur les causes & sur les conséquences probables de cette réclamation (London 1785). It was this work that brought Mirabeau to the attention of the general public in France. The Peace Palace Library digitized also a contemporary Dutch translation of this treatise. Some of the digitized publications discuss the role of the Schelde in Dutch and Belgian history starting with the medieval period, for example Charles Terlinden’s study ‘The History of the Scheldt’, History 4 (1920) 185-197, 5 (1921) 1-10, which sparked immediately a reaction from a Dutch historian, F. de Bas, ‘Another version of the Scheldt history’, History 5 (1921) 159-170.
The rivalry between the Dutch North and the Flemish South has not been the only cause for conflicts. The Dutch neutrality during the First World War made matters even more acute. After the First World War the attempts at a new treaty about the Schelde and the proposals to build a canal between the Schelde and the Rhine-Meuse estuary failed in the end in 1927 after heated national debates. More than one hundred publications in the digital collection bear witness to this prolonged affair. Legal historians, too, looked at the Scheldt question. The digital collection contains two publications by Ernest Nys, ‘Les fleuves internationaux traversant plusieurs territoires : l’Escaut en droit des gens’, Revue de droit international et de législation comparée 5 (1903) 517-537 (1903), and L’Escaut en temps de guerre (Brussels 1910). In 1940 Eduard Maurits Meijers published his study ‘Des graven stroom’, Mededelingen van de Koninklijke Nederlandse Akademie der Wetenschappen, Afdeling Letterkunde, new series, 3/4, pp. 103-205, in which he traced the medieval claims and jurisdictions on the several branches of the Schelde. Meijers thoughtfully added transcriptions of the main documents he discussed. In 1953 Chris van der Klaauw, between 1977 and 1981 the Dutch minister of foreign affairs, defended his Ph.D. thesis in history about the interwar relations between the Netherlands and Belgium [Politieke betrekkingen tussen Nederland en België, 1919-1939 (Leiden 1953)].
'Townscape' of BoZ (detail) by Samuel de Swaef and J. ab Heede, Atlas van Stolk (1634)
(Bergen op Zoom in Pictures)

Friday, November 25, 2016

Administrative expertise in the UK

The latest Journal of Environmental Law has a review essay by Elizabeth Fisher, "The Enigma of Expertise", reviewing Knowledge, Policy and Expertise: The UK Royal Commission on Environmental Pollution 1970–2011, by Susan Owens (OUP, 2015). Some of the historical background in the article (with footnotes omitted and links added):
Within UK administrative law and public administration there has always been scepticism of attempts at bureaucratic rationalisation. Public administration in most jurisdictions grew in a haphazard fashion but in the UK particularly so. The reasons for this are many and overlapping. The lack of a vigorous doctrine of separation of powers and thus a fused constitutional and administrative law is one factor. The failed ‘Prussian bureaucratic’ experiments of Edwin Chadwick in the 19th century another. As is the ideal of the generalist civil service as promoted by the Northcote Trevelyan Report in 1870. Administrative law took far longer in the UK to be recognised and when it did the American administrative lawyer, Kenneth Culp Davis accused British judges of being too much like ‘bricklayers’ and not enough like ‘architects’. He also noted that ‘the essence of the administrative process is missing from the literature of English administrative law’. It is also useful to remember that Lord Diplock’s articulation of the three grounds of judicial review was an act of codification not rationalisation. As Kamenka has put it, the common law also has traditionally had an ‘anti-administrative character’....
Throughout the 19th century, there was a ‘piecemeal accumulation of expertise’ in British government. By the 1920s, the need for expert public administration was becoming obvious. A major catalyst for this need was World War I as it made clear the nexus between knowledge and power. Recognising that nexus did not however result in a rose tinted understanding of expertise. ‘The expert is a notoriously bad judge’ ECS Wade wrote in 1930 (judges on the contrary were of course good at judging). Lord Hewart in 1930 wrote that expert officials were ‘naturally and necessarily hidden and anonymous’ so that they could not be examined or ‘brought to book’. Zimmern noted that ‘the solution worked out by Expert Committees are not edicts imposed by an omniscient dictatorship’.

Sunday, November 20, 2016

Bhopal Digital Archive

Mitra Sharafi recently posted on the digital archive created by her and others at the University of Wisconsin on the 1984 Bhopal disaster in which lethal gas leaked from the local Union Carbide plant and killed 15,000 to 25,000 people. The archive is centered on documents collected by legal scholar Marc Galanter, who was involved in civil litigation against the company. The archive explains the basic legal chronology:
Bhopal is frequently referred to as the world’s worst industrial disaster. The leak followed a period of reduced maintenance and neglect of safety systems at the plant.
The arrival in Bhopal of American lawyers led to the filing of hundreds of lawsuits against the American parent company, Union Carbide Corporation (UCC), in the United States. The Indian Parliament passed the Bhopal Act, designating the Government of India (GOI) as the exclusive representative of the victims. The GOI brought filed suit in US federal court on April 8, 1985. The many American cases were consolidated for pre-trial proceedings in the federal district court for the Southern District of New York. The case was assigned (by lot) to Judge John F. Keenan, at the time a relatively junior judge. Union Carbide moved to dismiss on grounds of forum non conveniens—i.e., that the case could more appropriately be tried in India.
The Court allowed discovery on matters limited to the question of where the case should proceed. The parties submitted briefs and supporting material and presented oral arguments. Judge Keenan granted the defendant’s motion to dismiss subject to some conditions, which Union Carbide accepted after modification by the Court of Appeals.
The case was re-filed in India in the District Court in Bhopal on Sep. 5, 1986. On Dec. 17, 1987, that court ordered preliminary compensation of Rs. 350 crores (then equal to about 25 million dollars). Union Carbide appealed to the High Court of Madhya Pradesh, which affirmed the order for preliminary relief, with modifications, reducing the amount of Rs. 250 crores. UCC then appealed to the Supreme Court of India. In February 1987, while the appeal was pending in the Supreme Court, UCC and the GOI reached a settlement, under which UCC paid the Government of India $480 million in dollars.
The GOI set up tribunals to determine the compensation to be paid to claimants. The tribunal process extended over more than 15 years. Because the value of the Indian rupee fell from roughly 13 to the dollar in 1987 to 45 to the dollar in 2004, the GOI ended up having a considerable residue (over $300 million) after paying the victims. In 2004 the Supreme Court ordered the remaining funds to be paid out pro rata to all those who had been compensated.
Many in India remain convinced that the culprits were let off too easily in light of the comparatively low damages payment and the absence of UCC’s chairman, Warren Anderson, from the trial that convicted his Indian subordinates.