Friday, July 21, 2017

Top 100 environmental blog

I'm happy to report that Feedspot has named Environment, Law, and History one of the top 100 environmental blogs. Thanks to all of you - the readers, writers, commenters, mentioners, and so on - who made it happen!

Thursday, July 20, 2017

Dutch drinking water

David Zetland and Bene Colenbrander recently posted "The Evolution of the Dutch Drinking Water Sector". The abstract:
Dutch drinking water companies (DWCs) have brought more water of better quality to more people over the past 160 years, but their institutional environment has changed with social priorities. We divide these changes into four eras in which an initial solution leads to a new constraint that forces a change in priorities and thus DWC actions. The first era begins around 1850 when polluted common pool water attracts sellers of drinking water as a private good. Priorities changed around 1900 as the government pushed for a network expansion that would bring drinking water services to all as a public good. The third era began around 1950 as strains on common-pool budgets and water supplies shifted the focus to rationalization and efficiency. The fourth and current era began around 1970 with DWCs being asked to restore ecosystems and play a larger role in the community. These shifts demonstrate how the path towards clean, safe drinking water may twist and turn as new opportunities eclipse past successes and changing priorities shift the relative costs and benefits of different actions.

Wednesday, July 19, 2017

The tobacco playbook

(Sorry for the long silence, I've been busy with some other things. As always, if you're interested in contributing posts to the blog, I'd be more than happy to help! In the meantime:)

Sarah Milov (a co-founder of this blog) recently published a piece in the Washington Post on the history of grass-roots anti-tobacco campaigns that might serve as a model for climate activism today. Some highlights:
Activists won the fight against tobacco by working on the local, not national, level. Neither the Occupational Safety & Health Agency nor the Environmental Protection Agency regulate secondhand smoke. Congress has never passed a Non-Smokers’ Rights Act. Instead, 41 states and 1,354 cities have enacted laws to protect the health of citizens. They did so in response to the sustained activism of men and women who argued that the government was not doing enough to protect their rights.
*****
In 1973, the dogged efforts of Betty Carnes, a sexagenarian amateur ornithologist, resulted in Arizona’s passage of the first law that banned smoking in elevators, museums, theaters, buses and libraries. Two years later, Minnesota passed an even more comprehensive Clean Indoor Air Act that banned smoking in many workplaces, stores, and banks.
*****
These state-focused efforts threw a wrench in tobacco’s well-oiled lobbying machine. Since the 1930s, the tobacco industry had enjoyed close relationships with tobacco-state congressmen who wielded disproportionate power in the Democratic Party coalition. And with millions to spend on well-connected Washington lawyers, the tobacco industry wielded clout with the federal agencies that had the capacity to regulate the many ways that tobacco touched Americans’ lives: as a drug, a consumer product, a pollutant, or a workplace hazard. 
...By 1981, 36 states had some kind of public smoking restrictions on the books. A decade earlier there had been none.
Action at the local level was even more dramatic — and even harder for the industry to combat. Berkeley passed one of the nation’s earliest antismoking ordinances in 1977 when it banned smoking in restaurants, but local smoking ordinances were not just for bohemians and health nuts. In 1981 alone, 35 cities passed indoor smoking restrictions, including Baton Rouge; Leavenworth, Kan..; and House Speaker Paul D. Ryan’s hometown of Janesville, Wis.
*****
In the 1970s, antismoking activists were outnumbered and underfunded. But by developing their own playbook — where cities functioned as both a site for social activism and a node of resistance against federal inaction — citizens cleared the very air we breathe. Today’s citizens now have a chance to do the same. 

Wednesday, June 21, 2017

Environmental originalism

Over at Legal Planet Dan Farber recently blogged on "The Truth About Environmental Originalism". Farber writes:
Scott Pruitt has taken to talking about environmental originalism – going back to the original intent of our environmental laws. But he’s got the original intent completely backwards. The statutes weren’t intended to protect jobs or grow the economy. They were intended to protect the environment, with cost at best a secondary consideration.
*****
In fact, some of the key provisions of our environmental laws preclude consideration of cost or even technological feasibility. For instance, the Clean Air Act requires EPA to set national air quality standards based entirely on possible risks to public health – and “with an adequate margin of safety.” As Justice Scalia himself was forced to admit in Whitman v. American Trucking Ass’n, the statute “unambiguously bars cost considerations.” In fact, he said in a footnote, EPA would be reversed in court there was proof that it secretly did take cost into account. (Pruitt might want to take note of this, given the number of leaks from the government these days.) As Scalia also recognized, these cost-oblivious air quality standards are the linchpin of the Clean Air Act. 
*****
This is not the only statutory provision that ignores costs. The Endangered Species Act prohibits agencies from jeopardizing the survival of species in absolute terms, with only a rarely used exception for extraordinary cases, requiring approval by a special cabinet-level committee. OSHA requires that standards for toxic chemicals in the workplace be set to eliminate any significant risk to workers, unless doing so would bankrupt the industry.
*****
It’s important to recognize that the federal environmental laws were passed in a time of remarkable public ferment over the environment. Don’t forget this was the era of the first Earth Day, of Rachel Carson’s Silent Spring, and of a public shocked by a fire on the Cuyahoga River and the Love Canal toxic dump. As I discuss in a recent paper, even arch-conservatives like Barry Goldwater and William F. Buckley were calling for much stricter pollution control. The public today remains broadly supportive of environmental regulation but the issue is no longer a top priority for most people. But it was an urgent priority in the 1970s when these laws were passed. The original intent was about as far away from current Republican views as humanly possible. If they could see that Scott Pruitt had become head of the EPA, the framers of these laws would have been appalled.

Tuesday, June 20, 2017

Property law and flooding

William Smyth Maynard Wolfe, “Maugerville on the St. John River, New Brunswick”
(1853/1854)
Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, "High Freshets and Low-Lying Farms: Property Law and St. John River Flooding in Colonial New Brunswick". The abstract:
Although New Brunswick was founded on private land ownership, colonists who settled low-lying land along the St. John River found that the waterway's erratic flood cycle and ever-changing nature threatened their lives and farms, and thwarted their efforts to divide riverbanks and islands into fixed parcels of private  property. This article draws upon colonial petitions, sessional court records, and colonial legislation in analyzing the response of the colonial legislature and of local governance to the challenge that the St. John River created for property rights and a private land management system dependent on static boundaries and fixed fences. In examining the colonists' attempts to adapt property law to foster appropriate responses to their changing environment and social needs, this article provides insight into the evolution of colonial law, local governance, the ecological knowledge of farmers, social conflict, and adaptations to flooding in early New Brunswick.

Monday, June 19, 2017

Legal traditions and environmental factors in water law

Gonzalo Rodriguez recently posted "Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta". The abstract:
No single factor has had a more significant effect on the ebbs and flows of history than water. Water creates civilizations, and water brings them to extinction. Even today, thousands of years after we learned to harness the power of water, we continue to struggle in determining how to prioritize competing uses of water resources, how to make water available to all who need it, and how to protect it. Yet, these are questions that humans have faced since as long as history dares to recollect.
What factors guide civilizations in their decision whether, and to what extent, to regulate and protect inland waterways? This article looks at four legal codes from three distinct civilizations: From the Romans, The Institutes of Gaius and the Corpus Juris Civilis; from the Visigoth Kingdom, the Visigothic Code; and from the English, Magna Carta. This article proposes that, perhaps more so than inherited Roman tradition, two sets of factors influenced the extent to which these codes protected inland waterways: perceptions of water resource abundance and the propensity for navigability and trade of these civilizations’ inland waterways.

Sunday, June 18, 2017

Scalia's "takings" legacy

John Echeverria recently posted "Antonin Scalia's Flawed Takings Legacy". The abstract:
This essay offers a generally negative appraisal of the significance of Justice Antonin Scalia’s work on the takings issue during his tenure on the Supreme Court. While Justice Scalia was a visible advocate for expanding the scope of regulatory takings doctrine, and his opinion for the Court in Lucas v. South Carolina Coastal Council represents an important precedent, the totality of Scalia’s takings work turned out to be relatively inconsequential. He only authored two majority opinions in takings cases during 30-plus years on the Court. No grand theory motivated his work on the issue, though he was surely sympathetic to the potential for the Takings Clause to constrain the permissible scope of government regulation. Scalia’s substantive contributions to takings jurisprudence are best understood as an effort to elaborate upon the two-part takings test articulated by Justice Lewis Powell in his 1980 opinion for the Court in Agins v. City of Tiburon. The first branch of this test, suggesting that a regulation denying economically viable use of property necessarily represents a taking, blossomed into the Lucas decision; though undeniably important, Lucas has turned out to have a relatively narrow scope. The second branch of the Agins test, suggesting that a regulation results in a taking if it fails to substantially advance a legitimate governmental interest, was repudiated by a unanimous Supreme Court, including Scalia himself, in the 2005 decision in Lingle v. Chevron USA Inc.
For more on Scalia and takings, see here.

Thursday, June 15, 2017

Property in water and urban water supply

"New" Jersey City reservoir, c. 1880
Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water, but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919:
Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it. 

Monday, June 12, 2017

Indian water rights, federal water rights, and state courts

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT)
Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights", published in Environmental Law. The abstract:
The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control,” and has subjected the tribes to “hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims.”
The purpose of this Article is to examine the legislative history of the McCarran Amendment ― the available Congressional Record, the Senate Report, as well as the Hearing Minutes ― in an effort to ascertain whether it was Congress’s intent to include Indian reserved water rights within the scope of the McCarran Amendment.
The legislative history indicates that “the McCarran Amendment was meant to be interpreted narrowly, not broadly.” It demonstrates that the Senators’ actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing “the years of building the water laws of the Western States . . . [to] be seriously jeopardized.”
Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a “privilege of immunity that the original owner wouldn’t have.” Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law.
For more on Indian water rights, see here.

Sunday, June 11, 2017

Water law and apartheid

The latest Water History has an article by Johann Tempelhoff, "The Water Act, No. 54 of 1956 and the first phase of apartheid in South Africa (1948–1960)". The abstract:
After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas; and taking steps against the increasing threat of water pollution. In this paper the focus is on the way the department, in terms of the Water Act of 1956, responded to the policy of separate development (apartheid), but at the same time took a deeper and long-term view of the development of water infrastructure to be of value for the country and its people, beyond the shorter temporal view of the political leaders of the day. The period 1948–1960 can be seen as the first phase of apartheid (1948–1960). It was notable for the initial emergence of significant opposition amongst the country’s indigenous African people to the white minority government’s apartheid policies, but their struggle was subdued. This phase came to an end at a time when the rest of Africa was engaged in rapid decolonisation and South Africa became politically ostracised in the international arena. What is apparent is that the emergent hydraulic mission of industrialisation promoted unsurpassed development that was destined to have a marked effect on South Africa’s status as a modern state on the African continent.