Wednesday, June 20, 2018

FDR and the environment

The Journal of Land Use and Environmental Law recently published an extended review by Michael Blumm of Douglas Brinkley's Rightful Heritage: Franklin D. Roosevelt and the Land of America (HarperCollins, 2016). The abstract:
Douglas Brinkley, biographer of Theodore Roosevelt and his environmental legacy, has produced a sequel on his distant cousin, Franklin Delano Roosevelt (FDR). In a comprehensive ecobiography, Brinkley shows in some detail how committed an environmentalist FDR was, protecting federal lands, encouraging state conservation efforts, making wildlife protection a national priority, and dedicating the federal government to soil protection and forest replanting. Although FDR’s romance with federal dams undercuts the assertion somewhat, the Brinkley biography successfully shows that FDR has a legitimate claim to being the foremost of environmental American presidents.

Sunday, June 17, 2018

The source of disenfranchisement for rural Americans

Slate's Issac Chotiner recently interviewed Eliza Griswold on her new book, Amity and Prosperity: One Family and the Fracturing of America (Macmillan, 2018). In the interview (and presumably the book) Griswold displays a strong historical sensibility about the legal-environmental roots of some of America's (and hence the world's) current predicament. An excerpt:
Isaac Chotiner: What is it that is “fracturing” America?
Eliza Griswold: These days we are hearing so much about this rural/urban divide. What does that really mean? What is the source of disenfranchisement for rural Americans? Much of it stems from natural resources. Rural Americans have paid for the energy appetites of urban Americans for more than a century.
I think a lot people in urban America would hear that and say, “Well, the people who are voting for candidates who are less interested in environmental protections are coming from rural America, and the people who are voting the opposite way are coming from urban America.” What do you say to that?
The urban American understanding of how regulation plays out on the ground in rural America is woefully inadequate. First of all, we don’t understand how for more than a century in many places in Appalachia, rural Americans have had their land ruined, as well as their health and their communities, in a search for the natural resources that feed urban Americans.
On top of that, if you talk to farmers, if you talk to Appalachian farmers … First of all, none of them simply farm, they have two jobs. Often that second job has to do with resources. They are either coal miners or former steelworkers. But how regulation plays out in their life on a daily basis has to do with farming, and farm regulation has driven many small farms out of business.
So, there’s this huge double standard where, if you talk to a pork farmer in Amity, he’s going to tell you that he has to pay $100 every time the vet comes out to take his shots. And that he has to fence his stream and the cows can’t go into the water. And he can’t drive his tractor across the stream either. Yet for more than a century, extractive industry has been able to come in and do whatever it wants to do. Until finally, here’s oil and gas, here are frackers who are actually paying money for mineral leases. Who are urban Americans to come in and wag a finger and say, “You don’t have the right to make any money off your land.” They don’t even understand how regulation practically works on the ground.

Friday, June 15, 2018

The legality and legitimacy of Japanese whaling - Part II

[Second and final part of a guest post by Geoffrey Wandesforde-Smith - Part I is here.]

The second point to take away from Arch’s book is that when organized whaling became established in early modern Japan, under the watchful eye of domainal lords (daimyo), who could decide who had jurisdiction over particular whaling areas, or over bodies of whales either washed up on shore or brought to a particular shore for processing, regulation was a way of dealing with the local problems of particular businesses, and of their interrelationships, and of the ways those businesses could benefit the domain through fee exactions, as a kind of tax-like income for the domain. It was not about ensuring the continued availability of whale meat as a food source. Indeed, when it took hold and expanded during the Tokugawa peace, Japanese whaling was not primarily about food. It was about profit and about ensuring the continued supply of a wide range of whale products. Sutter is eloquent on this point:
Workers using windlasses to pull sheets of blubber off a whale for processing in the sheds behind.
Courtesy of the National Diet Library of Japan.
Whale meat, which today sits at the heart of Japanese claims for the (legality and legitimacy of) … whaling’s deep cultural importance, was the least of it. Arch shows that whale meat, either fresh or salted, simply did not travel well and was thus of minor dietary importance during the early modern period. But whale oil served as a vital illuminant, other whale products helped the Japanese fertilize and work their fields, and, in one of this study’s most surprising insights, we learn how whale oil was also widely used as a pesticide that allowed the Japanese to intensify rice culture [p. xi].
And, again, Arch herself is more pointed:

Monday, June 11, 2018

Before Trump

Today's "This Day in Water History" has this:

Judson Harmon, c. 1912
June 11, 1895: First day of tenure of Judson Harmon as U.S. Attorney General. “Harmon issued the most explicit statement of what became known as the American doctrine of absolute sovereignty, that “the rules, principles and precedents of international law impose no liability or obligation upon the United States,” in a case involving a claim by Mexico for damages from diverting the waters of the Rio Grande.” Or, as one source put it: “US Attorney General Judson Harmon tells Mexico that the US will ‘do whatever it pleases’ with water from the Rio Grande.”

Commentary: Even for those days, this was a pretty amazing statement.

Thursday, June 7, 2018

The legality and legitimacy of Japanese whaling - Part I

[Sorry for the continued silence, but thanks to Geoffrey Wandesforde-Smith for pitching in with this two-part book review!]

At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.

Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].

Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].

But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.

The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].

If the validity of a sustainable take were ever to be established beyond a reasonable scientific doubt, the theory further holds that Japan would be able to resume commercial whaling in conformity with the 1946 International Convention for the Regulation of Whaling, which entered into force in 1948. Perhaps other countries that have given up whaling since the 1986 moratorium went into effect would do the same, although most observers of the IWC would consider that very unlikely. If Japan’s theory is ever to translate into practice, then much obviously depends not only on the scientific validity of Japan’s NEWREP-A research program but also on the legitimacy of the claim that eating whale meat has become so integral to Japanese identity that its legal prohibition would constitute an unwarranted act of cultural discrimination and deprivation.

So, against this background, what is the real history of whaling in Japan? Is it first and foremost a story about the continuation of a centuries old cultural tradition?  And how likely is it that the whaling Japan continues to do in the name of scientific research under IWC rules will validate a long-standing dedication to the sustainable use of whales for food?

Friday, May 25, 2018

Irrigation systems: Moors v British

Erum Sattar recently posted "From the Moors to the New World: Lessons from Dynamic Water Sharing for a Colonial-Era System in the Indus". The abstract:
This project is a close study of the legal and political aspects of management of water resources in semi-arid environments. The British in India laid the foundations of the modern irrigation system in what is now India and Pakistan. In semi-arid environments, the bulk of agriculture relies on irrigation, as it did in Spain under the Moors. We can observe a stark divide in the use of laws and institutions to manage natural resources in different societies, at different times and places. Some societies have managed in a way that achieved prosperity and long-term sustainability. Others have mismanaged so as to create ecological devastation and social stagnation. The Moors of Spain created a vibrant civilization in the Middle Ages that lasted nearly eight hundred years. One of the reasons for the dynamism of their civilization was their judicious management of water resources on which foundation they created a thriving agricultural economy that produced the economic surplus for their vibrant urban culture. Of particular interest for my project is what I regard as the essence of Moorish water management: its management of scarcity by borrowing principles from the great cradles of civilization, Mesopotamia and the Nile, which built abundance in harsh environments, along with principles of use, reuse and justice as conceived of in the Quran. These sets of principles, I shall argue, yielded a society that wasted no drop of its precious waters and adopted and innovated to create new technologies, infrastructure, norms and institutions. The British in India meanwhile laid the foundations of water-sharing in a way that to this day reifies rural hierarchy and leads to social and economic stagnation while devastating the environment. In this project of comparison, I draw relevant lessons from Moorish water systems for today's management of water resources across countries.
Irrigation channel in Spain

Wednesday, May 23, 2018

CFP: Celebrating Commons Scholarship

An issue of Theoretical Inquiries in Law on "The Tragedy of the Commons at 50" that I am co-editing should be out in a couple of months, at which time I'll post about it. In the meantime I received this call for papers for a conference on a similar theme. Please contact the organizers if you have any questions.

Georgetown University, Washington D.C.
October 5-6, 2018
This year marks the 50th anniversary of Garrett Hardin's The Tragedy of the Commons. In one of the most cited articles of the 20th Century, Hardin provided a stylized and memorable cautionary tale of how self-interested actions can destroy common resources. However, even as Hardin's work gained traction with a broad array of scholars in many fields of study, it also garnered its fair share of criticism. Indeed, while Hardin popularized the notion of the commons, Elinor Ostrom won a Nobel Prize for her rigorous research refuting the core tenets of Hardin's cautionary tale-- namely that open access resources ultimately end in collective failure, or tragedy, and that common resources should either be regulated by central authorities or privatized.  Ostrom’s work successfully demonstrated that common natural resources—e.g.  land, fisheries, forests, irrigation systems—are collectively managed by groups of users all over the world using “rich mixtures of public and private instrumentalities.”
The “commons” is now employed as a framework to understand and rethink the management and governance of many kinds of shared resources. These include natural resources such as those studied by Ostrom, digital resources and the Internet, housing and other urban infrastructure, among others. At the heart of the exploration of these “new” kinds of commons is the recognition that Hardin’s Tragedy is a groundbreaking, though ultimately incomplete, conceptualization of the challenges posed by shared resources and the kind of governance solutions available to address those challenges. In addition to concerns about overconsumption (Hardin’s primary focus), these new human-created commons (e.g., scholarly communities, urban resources, and open-source software) pose questions about robust participation in creating, sustaining, and expanding the commons.
To celebrate this now multifaceted, multidisciplinary field of study, scholars from many disciplines will gather to discuss solutions, lessons, and challenges facing the commons and commons scholarship. This gathering will recognize that commons are as diverse as the scholars who study them--ranging from rainforests to the Internet to the city—and that field is still developing in exciting ways.  In a world as complex as ours, finding such interconnections across disciplines is extremely valuable.   
The conference will be held on October 5-6th at Georgetown University and will be the kickoff and flagship event of “World Commons Week” activities around the world (www.worldcommonsweek.org), promoted and sponsored by the International Association for the Study of the Commons.
We invite proposals for paper presentations, thematic panels or sessions, workshops or interactive sessions, and poster presentations on research topics related to the commons and examined through the lens of a particular field or discipline.   Please submit an abstract of between 500-750 words that makes clear the relevance of the paper to the conference topic and a brief bio by June 15, 2018. Submit all materials to Chrystie Swiney, cfs23@georgetown.edu with a copy to the organizers below. Also, please be aware that there is small $50 fee to attend the conference, even if you are presenting a paper.

Monday, May 21, 2018

Just price

Thomas Aquinas
(detail from Valle Romita Polyptych by Gentile da Fabriano (c. 1400))

William Boyd recently posted  "Just Price, Public Utility, and the Long History of Economic Regulation in America". The abstract:
This Essay investigates the history of “just price” and its influence on the concept and practice of public utility regulation in the United States. It begins with a discussion of the Scholastic understanding of just price and its relationship to commutative justice, with particular attention to the problem of coercion in economic exchange. The Essay then discusses the centrality of just price to broader ideas of moral economy and to economic thought and regulation in colonial America and the early United States. The heart of the Essay shows how the idea of just price influenced public utility regulation as it took shape during the late nineteenth and early twentieth centuries. As the Essay demonstrates, received understandings of just price were fundamental to the public utility idea and were at the heart of battles over the proper approach to utility valuation and rate regulation during the first half of the twentieth century. The Essay concludes with a discussion of efforts to restructure formerly regulated industries during the last quarter of the twentieth century, with particular attention to the challenges faced by the Federal Energy Regulatory Commission as it seeks to ensure that prices in restructured natural gas and electricity markets are just and reasonable. Although much of the Essay’s purpose is descriptive, several larger points emerge from this study. First, the history of just price reveals that relations of reciprocity and fairness in exchange are at the very core of the public utility idea. When seen from this perspective, public utility represents an important experiment in translating abstract principles of economic justice and fair pricing into working rules for governing key systems of provisioning in a modern industrial society. Second, the history of just price reminds us that prices are more than signals; that they are also relationships and that price relationships can be coercive. At root, the economics of just price is an economics of coercion and, as such, an economics that resonates quite strongly with efforts by Progressive lawyers, legal realists, and institutional economists to develop an approach to law and economics (and economic regulation) that would put coercion at its center. Third, the history of just price shows that competitive markets, when functioning properly, can be powerful instruments for protecting consumers and facilitating fairness in exchange. But it also underscores the importance of taking individual markets on their own terms and recognizing that some markets, and the mechanisms of price formation at their center, are more vulnerable to disruption and manipulation than standard economic models suggest. Finally, at the most general level, the history of just price reminds us that for a very long time—far longer than the lifespan of classical and neoclassical economics—ethical and social concerns have been intimately bound up with conceptions of economy, economic life, and the provision of necessities.

Friday, May 18, 2018

The earliest boundary water treaty

Figure 1: 
Memorial cone of the Mesilim Treaty
Thanks to Peter Sand for contributing this post!

[Footnotes after the jump.]

The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty, concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō (Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, depicts Lagash ruler E’anatum leading his army, and vultures devouring slain Umma warriors (figures 2 and 3).

Mesilim [or Mesalim, born ca. 2600 B.C.] was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the loose alliance of small adjoining Sumerian city-states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon.[4] Because of the prevailing precarious rainfall conditions, the agricultural economy of the entire basin area has always been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an elaborate system of canals and levees which inevitably require close inter-community cooperation. The geographic focus of the bilateral Lagash-Umma agreement, concluded under Mesilim’s authority as external arbiter, was the fertile Gu-edena valley, roughly ten by four kilometers wide and irrigated by Tigris waters from a canal named Lum-magirnunta on the border between Umma and Lagash, with boundaries marked by stone steles.
Figure 2: Stele of the Vultures
Figure 3: Stele of the Vultures
Part of the treaty was a crop-sharing arrangement for a portion of boundary land (some eleven square kilometers) downstream on Lagash territory, that was cultivated by Umma under lease, against payment of an annual rental fee (máš, calculated in silver-shekel equivalents of barley crops) to cover the costs of canal maintenance.[5] However, when Umma repeatedly refused to honor its accumulated tenancy debts, hostilities broke out, resulting in partial destruction of the canal and in unilateral diversions of water upstream. In several successive military confrontations (‘the first known war in history that was, in essence, fought about water’),[6] Umma was ultimately defeated by Lagash (first under the leadership of E’anatum, ca. 2470 B.C.; and later under his nephew Enmetena, ca. 2430 B.C.),[7] and was forced to accept the reconstruction (and extension) of the canal and the reinstatement of the boundaries as originally drawn up by Mesilim.

Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-established, does not seem to have survived for long, and was eventually overtaken and mooted by external political events (the Akkadian/Sargonic invasions) in subsequent generations. Even so, the agreement has been hailed as ‘the first international arbitration’,[8] and as ‘the oldest treaty of which there is a reliable record’.[9] It remains a unique early attempt at resolving a dispute over boundary waters by formal reference to a superior spiritual order (in this case, the deities of both parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of international law in this field – well over 4,000 years ago.[10]

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Sunday, April 29, 2018

Madeira and trust

Sorry for the slow pace of postings - no, I haven't been hitting the Madeira; I'm in the middle of a heavy semester teaching-wise, and on a short deadline for an article, etc. I'd be more than happy, as always, to post pieces by others, especially those of you whose semester is ending soon. Please let me know if you're interested.

In the meantime, here's a bit on the latest post on Rachel Laudan's food history blog, "Trade, Trust and Madeira", a post with both environmental and legal angles. Laudan connects the drinking of Madeira wine to Enlightenment theories of trade and sociability. Laudan writes:
I just want to highlight how trade, trust and Madeira reinforced each other.  The wine became Madeira’s most important export around 1700.  By then, sugar, which had been the main export for over a hundred years, the forerunner of the sugar plantations of the New World, had exhausted the soils. For the next two hundred years, Madeira flourished.
Producing and trading Madeira was no easy game. Complex irrigation projects were put in place. The wine was fortified with spirits to survive the long sea journeys. In an extraordinary turn of events, wine that had been shipped to India and for some reason made the return journey instead of being ruined, tasted particularly “mellow.”
The Americans, who in spite of their most determined efforts, failed to establish a wine industry in the Colonies, were particularly eager traders and consumers, though far from the only ones.
Here’s the thing. Living in the United States, where Amazon deliveries arrive on time and are left on doorsteps, we happily get on the internet, commit our money, secure in the expectation that the strangers who pack the goods, debit the cards, fly the planes, and drive the trucks will all act responsibly. My neighbors are shocked if packages left on the porch disappear. Yet I’ve lived in plenty of places where no one commits any important documents to the mail or orders anything to be delivered.  That chain of trust just does not exist.
Chains of trust have been built up over time. There’s lots of interesting historical work going on now about how merchants built trust along huge networks, the role of families and tightly knit religious or ethnic groups, the types of contracts, and the importance of correspondence.  Wine, like other valuables, had always been shipped long distances (the Romans sent wine to eager drinkers in northern Europe, for example, with Madeira the distances and cultures involved were on a whole new scale, stretching around the Cape to India and Southeast Asia, up to Scotland, across to the Caribbean and the American Colonies.
Part of that trust was building shared customs, civility, ways of comporting yourself among strangers. Drinking Madeira was one of these customs. Along with the wine itself went barrels, labelled bottles (a novelty because not stoneware), delicate glasses and decanters which, as Hancock puts it, “dripped both wealth and politesse.”
Passed from hand to hand, they helped bond political factions, merchant networks, and intellectual circles in gatherings in the home, in taverns, in messes, in clubs around the world.