Water law in common law cultures - Getzler's synthesis

The latest issue of Western Legal History is dedicated to the topic of "Water", and I plan to post on a number of the pieces in this issue. 

I'll start with Joshua Getzler's masterful survey of water law in Britain and many of the territories it ruled at various points in history, "Ownership and Control of Fresh Water in Common Law Cultures". Getzler manages not only to integrate major developments in many legal systems - including those of the US, Canada, Australia, New Zealand, India, and Mandate Palestine - and across nearly a millennium (beginning with Bracton), into a succinct and coherent whole, but he does so while elegantly connecting classical doctrine with current concerns, such as environmental protection and indigenous water rights. 

One aspect of the article that I particularly liked was its unpacking of the intertwined and often contradictory lines of thought in the common law, which Getzler deftly connects to Romanist and feudal ideas of property.

I highly recommend this article to anyone looking for a broad yet succinct survey of the history of water law.

(For more on water law in the British Empire, see my posts here.)

Public rights and standing

Owen Smitherman has posted "History, Public Rights, and Article III Standing", forthcoming in the Harvard Journal of Law and Public Policy. The abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Justice Thomas (Stetson University)

Nuisance, planning and the common law in Bombay

Continuing themes from recent posts on British India and on nuisance: Sukriti Issar recently published "Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay" in The Journal of Legal History. The abstract:

The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Plan of Bombay about 1760, from James Douglas,
Bombay and Western India. A series of stray papers (1893)

Privatizing water and fish in colonial India

Devika Shankar's article on property in water and fish in India is now also a blog post at Past & Present. Shankar explains that her article reflects 

a close analysis of over 10 important and highly cited cases from different parts of British India in which judges deliberated on whether flowing water and fish could be treated as private property. Starting with a significant set of cases relating to the planting of stakes in the sea off the coast of Bombay, the article then primarily looks at cases involving rights over rivers in the fluid landscape of the Bengal delta. The article not only highlights the enduring confusion surrounding the status of water in colonial Indian law, but also looks at the different ways in which judges interpreted roman law and precedents from English common law while reaching their judgments. After reaching a variety of conclusions, by the 1880s high courts had begun to simultaneously make room for unprecedented private rights over flowing waters in colonial India while rendering these rights largely redundant by insisting that fish in these waters could not be counted as property until they were caught. The conflicting pull of these judgments however began to create serious problems in Bengal where fishing rights were considered to be especially valuable. It was in order to overcome this impasse that the Bengal government ultimately passed the Bengal Private Fisheries Protection Act in 1889 granting landholders significant rights over fish in rivers across the province. It would do so by significantly strengthening the kinds of private rights that could be claimed over water, and inaugurating a novel category of “private waters” in tidal waters in Bengal and other parts of India. By tracing the arguments and logics that ultimately paved the way for this act, this article highlights the importance of recognizing colonial India, and especially Bengal as an significant site for experimentation with new forms of private property rights over flowing waters.

Charley Brown, Illustrated Guide to the South Indian Railway (1913)

More on property in water and fish in colonial India here.

Cottages as public nuisances

More on public nuisance: Maureen Brady recently posted "Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor", forthcoming in Depaul Law Review. The abstract:

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters.

Blackstone, Washington DC

The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear.

The evolution of US NOx standards for cars

Dan Farber at Legal Planet recently posted on "Cars, Smog, and EPA". An excerpt:

For the first 20 years of federal regulation, Congress set the NOx [nitrogen oxides] standards for new cars itself. That’s quite different from the standards for industrial pollution sources, which Congress has always delegated to EPA. The reason may have been the high political stakes in the car industry or the relatively easier task of setting standards for new products in a single industry using a single energy process.

East River and Manhattan Skyline in Heavy Smog (Chester Higgins, Jr., EPA, 1973)

... The initial standard, set in the 1970 Clean Air Act, was 3.1 grams per mile (gpm) for NOx. Achieving that standard was thought to be nearly impossible when Congress created this mandate, but the mandate forced the car companies to make technological breakthroughs with catalytic converters.

Note that the standard is set in terms of pollution per mile rather than pollution per gallon. That means that any increase in fuel efficiency automatically helps a company meet the pollution standards as well. Theoretically, a car could have no pollution control at all but get such phenomenal mileage that it met the pollution standard. Actual mileage has improved but not enough to obviate the need for pollution controls.

Congress adjusted the standards twice. A 1977 amendment reset the limit to 1 gpm in 1981. The 1990 amendments changed the standard to 0.6 gpm, effective in 1994. These are called Tier 1 standards. Apparently Congress did not relish the task of periodically resetting the standards itself  The 1990 Amendments authorized EPA to set standards for 2004 and beyond.

*****

This has to be considered a successful regulatory program. The Biden proposed standard  [of 2023] allow less than 1% of the pollution levels that Congress mandated in 1970.

Water access and historical redlining

Charles W. Sterling III recently published "Connections Between Present-Day Water Access and Historical Redlining" in Environmental Justice. The abstract:

Although challenges in water and sanitation access are often assumed to be issues of low- and middle-income nations, more than 400,000 homes in the United States still lack access to complete indoor plumbing. Previous research has demonstrated that the remaining plumbing challenges are more prevalent in communities with high Black and Brown populations. This study hypothesizes that the 1930s practice of redlining by the Home Owners' Loan Corporation (HOLC), which systematically denied loans to minority populations, is linked to present-day inadequate plumbing access (i.e., defined as incomplete plumbing above the national average). Digitized HOLC maps for 202 urban areas across the country and U.S. Census data from the 2016 to 2020 American Community Survey were combined to interpolate the modern-day plumbing access for historical neighborhoods (n = 8871 communities). Analysis via binomial logistic regression demonstrated that nationally, redlined communities (HOLC Grade “D”) are significantly more likely to have a rate of incomplete plumbing above the national average compared with greenlined communities (HOLC Grade “A”) (0.1352; confidence interval = ±0.036). This finding was also observed for three of the nation's four census subregions (Northeast, Midwest, and West). Slight differences by region in relationships between the proportion of specific racial/ethnic populations on rates of incomplete plumbing demonstrate the need for targeted place-based interdisciplinary examinations of exclusionary practices. The demonstration of the present-day impacts of redlining after nearly 90 years emphasizes the need to intentionally mitigate past injustices to ensure modern-day equity.

Water rights and forest regulations in the Charter of the Escartons (1343)

The Grand Charter of the Escartons

I was fortunate to be able to spend some time this summer along the Guisane River, in the area formerly known as the Dauphiné, today in southeastern France. The river is notable for its old canals, still in use, and the surrounding mountain slopes are covered in forest. It turns out this landscape has an interesting legal history.

In 1343, Humbert II, the last Dauphin of Viennois (before that title passed to the kings of France and was used for the heir apparents to the royal throne), confirmed the rights of the people of the Briançon region in the "Grand Charter of the Escartons", effectively creating a sort of autonomous republic free of feudal obligations that survived, with its rights confirmed by the Kings of France, until the French Revolution. Two articles caught my eye (my translation from the French translation by Fernand Carlhian-Ribois):

Art. XVII  : The people of Briançon now have the right to build canals to water their land, take water from torrents and rivers without having to pay the right of use either to the Dauphin Humbert or to his heirs and successors.

Art. XVIII  : It is forbidden for the officers, Dauphins and Nobles to cut timber or firewood in the forests of the Communities of Briançonnais, Queyras, Vallouise, Césane, Oulx, Pinet, Chevalette, Fontenils, or other places in the Baillage, because the cuts are the cause of floods, landslides and avalanches. This prohibition is perpetual. 

Article 18, with its early recognition of the connection between deforestation, erosion, and flooding, is interesting for its popular environmentalism, blaming the environmental degradation of the mountain region (a theme that became prominent again in the nineteenth century; see. e.g., George Perkins Marsh's Man and Nature) on the feudal rights of the nobility, and abolishing those rights forever. 

And I wonder what the effect of Article 17 was on riparian conflicts. Said Guisane River is full of canals (see photo below) leading off to mills on the riverbanks and then returning the water downstream. While family members were enjoying rafting the stream, I was imagining the conflicts between riparian owners and public users that must have resulted from the many dams and diversions. Local legal records must be full of such riparian conflicts, and I would think that Article 17's right to take water free of charge must have complicated the issue.

CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches. 

The reasonableness standard, Israel's current crisis, and Edward Coke

As protests continue to erupt in Israel over the government's proposal to oust the power of courts to review decisions of the government and its ministers for reasonableness, I thought it worth taking a look at the historical origins of this doctrine in an area of particular interest to this blog - water law.

Israeli administrative law's reasonableness standard was inherited from the British, who ruled Palestine from 1917 to 1948 and imported much English law and legal culture to the middle eastern jurisdiction. In the 1928 Supreme Court case of AG v Altshuler ([1920-1933] PLR 273), for instance, the court held that a municipal bylaw of Tel Aviv was invalid due to unreasonableness, relying on the English precedent of Kruse v Johnson ([1898] 2 QB 91).

Sir Edward Coke

As many will know, the reasonableness standard was apparently introduced to English law by the 1598 decision of the Court of Common Pleas in Rooke's Case (5 Co Rep 99b, 77 Eng Rep 209). At issue was the power given to the Commissioners of Sewers by statute (the 1531 Statute of Sewers) to assess lands adjoining water courses in order to fund the building of works to protect adjacent lands from flooding. The Commissioners assessed a certain Carter, who had seven acres of land flood-prone adjoining the Thames, with the costs of repairing the banks of the river along a long segment of the river, leaving a further 800 acres, possessed by others and similarly threatened by the waters, free of charge. In their defence, the Commissioners pointed to the language of the statute (s 3), which gave them the power to make repairs 'as Case shall require, after your Wisdoms and Discretions'. Edward Coke's report explained what he saw as the rationale behund the court's rejection of this claim:

Notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law [emphasis added - DS]. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections ; for as one saith, talis discretio discretionem confundit [such discretion confuses discretion].

So administrative discretion, explained Coke, must be subject to 'the rule of reason and law'.

One might have legitimate criticisms of the way the reasonableness standard is currently applied in Israeli law, but it is clear that the current government's main motivation in its proposed legislation is simply the desire to be free of the rule of reason and law - which explains why there are hundreds of thousands of us out on the street protesting...