Wednesday, August 3, 2022

Carbon dioxide as an air pollutant

More on the co-production of environmental science and law: Just out in Environment and History is an article by Ashton Macfarlane, "The Many Pollutant Identities of Carbon Dioxide: Global Climate Monitoring and Air Pollution Research in New Zealand, 1968–1975", that discusses the way carbon dioxide was framed as an air pollutant due to the modern air pollution statutes of the 1960s and '70s. The abstract:

In the late 1960s, New Zealand and the United States collaborated to establish a southern hemispheric carbon dioxide (CO2) monitoring station on New Zealand’s coastal cliffs. The New Zealand CO2 Project, as it came to be known, is an underappreciated landmark in the history of environmental monitoring. The archival record of its early years reveals the extent to which efforts to measure atmospheric carbon dioxide concentrations interacted closely with one of the most hotly debated political issues of the mid-twentieth century: urban air pollution. The designation of CO2 as air pollution on a planetary scale had profound legal implications in an era in which clean air legislation increasingly brought air pollution within the scope of governmental regulation, and administrative agencies began to jostle for control of the monitoring enterprise. The precise nature of CO2 as an air pollutant, however, was difficult to pin down. In these initial years of concerted carbon dioxide monitoring, when the lines between climate science and air pollution research were still blurred, CO2 developed its many pollutant identities. The nature of these identities – and the ways in which scientists and science administrators negotiated their boundaries – retain their relevance today, as nations continue to link air pollution and climate legislation in the twenty-first century.

NIWA's Baring Head monitoring station (Dave Allen)

Thursday, July 28, 2022

Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

Saturday, July 23, 2022

The Wildlife and Countryside Act 1981

The latest  issue of the English Historical Review has an article by Matthew Kelly, "Habitat Protection, Ideology and the British Nature State: The Politics of the Wildlife and Countryside Act 1981". The abstract:

The Wildlife and Countryside Act 1981 was the most important piece of environmental legislation passed by a British government since the National Parks and Access to the Countryside Act 1949. It sought to enhance the protection of listed flora and fauna, prevent further damage to existing habitat and resolve issues that had arisen with respect to rights of public access to the countryside. Although the bill was long and complex, many of its provisions sought to rationalise existing statutes or extend existing provision rather than create new powers. Provisions seeking to protect habitat proved highly contentious. The proprietary interest resented what it saw as an unjustified interference in private property rights; statutory bodies were alarmed that the centralising aspects of the Act would empower ministers at the expense of their ‘scientific’ independence; and the emergent environmental lobby, increasingly frustrated by the cautious approach of the statutory bodies, was determined that the bill’s habitat protection provisions be strengthened. This article examines the lengthy and disputatious consultation and parliamentary process in terms of longer-term frustration with the apparent weakness of statutory protections and how it brought the environmental effect of agricultural intensification into mainstream political debate. This article contextualises the growing insistence that there was a public interest in the health of the natural environment and situates the argument with respect to what environmental historians have started to analyse as the history of the ‘nature state’, a distinct realm of state activity comparable to the welfare state, warfare state or security state.

Friday, July 15, 2022

Negotiating regulatory science

More on the law-science nexus: The latest issue of Comtemporanea has an article by David Stradling, "Negotiating Regulatory Science. Dredging the Great Lakes in the Age of Ecology". The abstract:

In the mid-1960s residents around North America’s lower Great Lakes expressed growing concern about the dumping of dredge spoils in open waters, which they suspected of harming water quality. The act of dumping spoils, particularly from industrial harbors, became a target for government regulators eager to show progress in solving the environmental crisis. Scientific studies of dredging’s ecological impact and the regulation of dredging increased in Canada and the United States. The multiplicity of bureaucracies involved ensured that the International Joint Commission (IJC), established to resolve policy conflicts along the international border, would address the issue of dredging. The IJC response to the dredging conundrum provides a case study of how bureaucracies negotiated scientific knowledge in the age of ecology. Scientists turned data into knowledge and knowledge into policy guidance inside bureaucracies with conflicting missions that reflected divisions in the broader public. The public’s vague but powerful fear about sediment tainted by the industrial cities in which it accumulated forced the creation of a remarkable body of scientific knowledge related to how pollutants move through and accumulate in lake ecosystems. Activists forced governments to define pollution, to determine which of the many effluents of industrial cities affected human and ecological health, and at what concentrations they became a threat. In the age of ecology, regulation often outpaced science, and scientific research raced to meet public demands.

Tuesday, June 21, 2022

Corpus linguistics and the history of environmental law

The article by Caroline Laske in the new issue of Comparative Legal History, "Corpus linguistics: the digital tool kit for analysing language and the law", argues for the utility of this computational methodology with an example (among others) from the history of environmental law. First the article abstract:

Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us understand not just what is being said, but also how it is being said, how language is used to encode meanings, and what that can tell us about underlying contents and the socio-political, cultural, geopolitical, economic, and other contexts and discourses in which these texts were produced. This paper argues that the use of corpus linguistics is relevant across comparative legal history and can be applied in comparative legal historical research independent of the area of the law or the historical period. Detailed studies incorporating corpus linguistics will be discussed to show the potential of this methodological shift.

The example of environmental law is used to demonstrate how corpus linguistics (CL) can be used to study rapid change in the law (notes omitted):

Friday, June 17, 2022

Crusader riparian rights

The latest issue of Water History has an article by Tobias Hrynick, "The mills of god grind slowly: the Na’aman River milling dispute and the thirteenth-century hydraulic crisis in the Crusader States", that looks into a dispute over water rights between neighboring water mills that seems a precursor to the riparian-rights disputes that were so numerous in the nineteenth century. The abstract:

In the mid-thirteenth century, the Hospitaller and Templar military orders engaged in a long-running dispute over the supply of water to two hydraulic gristmills outside the city of Acre in the Crusader Kingdom of Jerusalem that prompted international scandal, royal and papal intervention, and mutual attempts at sabotage. This article examines this dispute in the context of a broad survey of milling operations in the Crusader States and argues that this dispute was representative of a widespread hydraulic shortfall in the Latin East by the thirteenth century, when the kingdom’s military collapse and the increased cultivation of sugar cane aggravated a pre-existing shortage of water-power in the relatively labor-poor eastern Mediterranean. The efforts of local landholders like the military orders to maintain access to hydraulic resources provide an instructive example of a pre-modern society’s efforts to accommodate an environmental crisis.

The Templar mill on the Na'aman today (photo: Liorca)

Wednesday, June 8, 2022

The complexity of Roman water law

The latest issue of Water Alternatives has an interesting article by Alberto Quintavalla, "Roman Law and Waters: How Local Hydrography Framed Regulation". The article provides a fresh and nuanced look at how Roman law dealt with water, showing that it did not have a coherent or unified approach to the many sites and types of uses made of water, and drawing some possible lessons for modern law. The abstract:

Is there a relationship between the conceptualisation of water and its regulation? There is no simple or obvious answer to this question. This paper contends that the Roman regulatory framework mirrored the fragmented conceptualisation of water that was dominant in pre-modern times. The paper aims to show that water regulation is sensitive to the particular conceptualisation of water that a society adopts, which in turn reflects the specific historical period in which it is embedded. It also aims to show that there may be a way to deal with local hydrography differently from the paradigm currently promoted by the integrated water resource management framework. These considerations are not moot in today’s discussions on water resource management. 

Pont du Gard, part of the NĂ®mes aqueduct, France

Sunday, May 15, 2022

Before Yellowstone

Dan Farber recently posted at Legal Planet on "The Arkansas Origin of National Parks". Farber writes:

The origins of the national park system is usually traced back Lincoln’s 1864 signature of the Yosemite Grant Act.  But Congress had actually had the idea of protecting extraordinary places over thirty years earlier, in Arkansas of all places. Hot Springs isn’t high on the list of American places to see, which may be one reason this episode had been forgotten. But it deserves to be remembered as a milestone in federal policy.


On April 20, 1832, Andrew Jackson signed legislation to set the springs and surrounding mountains from development.  The legislation provides that the township surrounding the springs “shall be reserved for the future disposal of the United States, and shall not be liable to be entered, located, or appropriated, for any other purpose whatever.” The law also authorizes the governing to use the revenue from short-term leases of the spring to fund “the opening and improving such lands in said territory, as said legislature may direct, and to no other purpose whatever.”

Unfortunately, Congress didn’t appropriate any money to supervise the area, and the result was helter-skelter private developments. The private owners later sued to establish title to the land they were using, under a law that Congress passed specifically to authorize federal litigation on the issue. The Supreme Court ruled against them in In re Hot Springs cases, 92 U.S. 698 (1875). That ruling cleared the way for active federal management of the land by the Interior Department. The land is now a National Park.

Yellowstone is in some ways a clearer story about preserving nature. Hot Springs began with the different but related goal of ensuring that valuable public resource was used for the benefit of the public.  That may be one reason why the Hot Springs story hasn’t gotten as much attention.  Hot Springs did set an important precedent, however, about keeping land of public value out of the hands of developers. That’s a story worth telling.

Thursday, May 12, 2022

The elimination of leaded gasoline in Japan

In Custodia Legis recently carried an interesting post by Sayuri Umeda on the history of the elimination of leaded gas in Japan. Among other things, it demonstrates that environmental regulation is often driven politically by pressure from businesses that stand to profit from the regulation, a phenomenon we have also seen, for instance, in the history of the Montreal Protocol on ozone-depleting substances. This is an important lesson for those trying to drum up political support for regulation. (It is also a shocking story of greed and regulatory failure in the US and elsewhere.)

Umeda writes (some links removed):

When I saw news headlines online on March 7, 2022, saying that a study found Americans born before 1996 might have a lower IQ from exposure to leaded gasoline, I seriously thought that my own IQ could be lower for the same reason, having grown up in Japan.

I checked when Japan banned leaded gasoline and found that actually, I was safer in Japan. Japan was the first country to ban leaded gasoline.

Friday, May 6, 2022

When Democrats and Republicans united to repair the Earth

H-FedHist recently published a review by Bart Elmore (recent recipient of the Dan David Prize) of Gregg Coodley and David Sarasohn's The Green Years, 1964-1976: When Democrats and Republicans United to Repair the Earth (U. Press of Kansas, 2021). Elmore writes:

Building on the work of numerous environmental historians—including Robert Gottlieb, Martin V. Melosi, Carolyn Merchant, Roderick Nash, Adam Rome, and Paul Sutter, among many others—Coodley and Sarasohn offer here an exhaustive play-by-play account of the legislative battles between 1964 and 1976 that led to the passage of some of the most important environmental laws in the United States. The central takeaway of this book is that though Democrats controlled Congress throughout these years, “all environmental laws passed from 1964 to 1976 commanded huge bipartisan support” (p. 257). Coodley and Sarasohn explore how political compromises formed to yield environmental laws, like the Clean Water Act of 1972 or the Toxic Substances Control Act of 1976, but also save room for concluding chapters that discuss the factors that led Republican Party members away from supporting environmental legislation in the 1980s and beyond.


An important point of emphasis in the section on the late 1960s and early 1970s is that though Nixon was never personally passionate about environmental issues—he once “walked on the beach in wingtips,” quip Coodley and Sarasohn— key members of Nixon’s staff, especially Pacific Northwesterner John Ehrlichman and Council of Environmental Quality adviser Russell Train, were major proponents of big legislation designed to preserve and protect America’s wildlands, waters, and natural resources (p. 4). The central message here is that Nixon’s impressive environmental legacy—which included the signing of the National Environmental Policy Act in 1970, creating the EPA the same year, and supporting the Clean Air Act and the Endangered Species Act of 1973—was largely a product of Nixon’s calculating desire to maximize political capital by supporting signature legislation that had widening popular support from constituencies on both sides of the political aisle.

But Coodley and Sarasohn are careful to point out that Nixon’s willingness to push for environmental laws did not last forever. The turning point in the book is the winter of 1971 and 1972 where Nixon began to express serious concern that he would soon face major backlash from pro-industry voters if he continued to support stiff environmental regulations. “I have an uneasy feeling that perhaps we are doing too much,” he wrote his chief of staff, H. R. Haldeman, in February 1971. “Just keep me out of trouble on environmental issues,” he told Ehrlichman around the same time (p. 142). Nevertheless, despite Nixon’s waning interest in environmental issues, Republican members of Congress continued to find common ground with Democratic colleagues even as the toxic political bitterness of the Watergate scandal embroiled the nation. 

The review goes on to discuss the book's treatment of the post-Nixon years, as well.