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. 

Friday, April 29, 2022

Acid rain and Nordic-Russian cooperation

The recently published open-access book, Greening Europe: Environmental Protection in the Long Twentieth Century – A Handbook, edited by Anna-Katharina Wöbse and Patrick Kupper (De Gruyter Oldenbourg, 2021), has a number of law-related chapters. One is Arne Kaijser's "Combatting 'Acid Rain': Protecting the Common European Sky",  which has an observation on Soviet-Scandinavian relations that takes on additional interest given the news of the day regarding Sweden, Finland, and NATO. The abstract:

In the late 1960s, Scandinavian scientists asserted that the long-range air pollution was causing serious acidification and that emissions all over Europe would have to be diminished. The prevailing view at the time was that air pollution was a local phenomenon best handled by building high smoke-stacks, and the major polluting countries were opposed to spending money on protecting areas far away in other countries. This chapter analyses how the discovery of “acid rain” triggered the first international research projects to confirm long-range air pollution and how, in a second phase, international negotiations involving scientists, policymakers, and diplomats resulted in the Convention on Long-Range Transboundary Air Pollution in 1979. Later on, special protocols were adopted, and the signing nations promised to decrease their emissions in accordance with specific goals. Cold War politics played an interesting role in the negotiations and led to an unexpected alliance between Nordic countries and the Soviet Union.

Effects of acid rain, woods, Jizera Mountains, Czech Republic

Thursday, April 21, 2022

Environmentalism Then and Now

I just came across a site by the American Bar Association's Division for Public Education with teaching materials on the history of environmental law

It's an eclectic group of resources. For instance the PowerPoint presentation entitled "Environmentalism Then and Now: Is Going Green New? You Be the Judge..." includes slides on a 1681 regulation by William Penn requiring Pennsylvanians to conserve one tree for every five cut down, and a 1739 petition by Benjamin Franklin to the Pennsylvania Assembly to stop waste dumping in Philadelphia harbor.

There's also a unit on the Exxon Valdez spill and ensuing litigation, including Supreme Court briefs.

Exxon Vladez - skimming operation (NOAA)

Tuesday, April 19, 2022

CFP: Law and Art in the 19th Century: Power in Images

Here's a call for papers for a conference set to take place at the Universita’ di Verona this coming October, on a topic that I think relevant to the intersection of environmental and legal history:

The research team, set up to further study the project Images, Law and Power in the Modern Age, within the framework of the Excellence Project of the Department of Legal Sciences of the University of Verona (2018-2022), is organising a conference on the theme of the artistic representation of law in the 19th century, from the French Revolution to the early twentieth century.

The purpose is to investigate the ways in which, during the nineteenth century, the substantial change in the structural characteristics of the legal phenomenon, and the emergence of an alternative legal experience, corresponded to the replacement - or re-semantization - of the symbols and images traditionally expressed in the law, so that they were more suitable to convey the new concept of the juridical in society.

Details are on the conference website.

Elihu Vedder, Good Legislation mural, Library of Congress Jefferson Building (1896)

Monday, April 4, 2022

French planning law

The French journal Revue d'histoire des Facultés de droit et de la culture juridique recently published a collection of articles on the occasion of the 100th anniversary of "la loi Cornudet", the 1919 French statute on urban planning (known by the name of the legislator who initiated it). The papers are based on those delivered at a conference at the Sorbonne in 2019.

As the French law was roughly contemporaneous with salient American planning and zoning laws and the English Town Planning Acts, it would seem that there should be ample room for fruitful comparative and transnational research. I hope someone takes up the challenge!

Paris development plan of 1934

Tuesday, March 29, 2022

Paolo Grossi and the environment

The French-language Revue interdisciplinaire d’études juridiques published two articles last year on the relevance of leading Italian legal historian Paolo Grossi's work to environmental issues. 

Paolo Grossi, 2016 (Quirinale.it)
The abstract of the first, by Alessia Tanas and Serge Gutwirth, "Le pluralisme juridique retrouvé au temps des désordres écologiques. Penser la relation entre le droit et les communs de la terre avec Paolo Grossi" (Legal pluralism at times of ecological disorders: thinking the relationship between landed commons and the law with Paolo Grossi):

In this contribution, the authors introduce a few key aspects of Paolo Grossi’s research path and link them to their work on the legal questions raised by landed-commons and local ecologies.

There follows a contribution by Grossi himself, "Une autre façon de posséder. Réflexions historico/juridiques sur les aménagements fonciers en Italie" (An alternative to private property. Reflections on land set-ups in Italy from a legal history perspective):

In his contribution Paolo Grossi provides his viewpoint as a legal historian on collective land set-ups in Italy and shows how, through constitutional jurisprudence and the adoption of Law n° 168 of 20 November 2017, the Italian legal order not only recognizes their legal autonomy but also recovers its pluralism and complexity. Such recognition benefits to the protection of the environment.

Friday, March 18, 2022

Water, fish and property in colonial India

Last week I enjoyed attending on online event of the Asian Legal History Seminar, at which Devika Shankar presented her article, "Water, Fish and Property in Colonial India, 1860–1890", recently published in Past & Present. I recently covered similar issues in my article, "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World", published last summer in Clio@Themis, though I totally missed the cases discussed by Shankar, and she comes at the topic from a wholly different angle.

The abstract of Shankar's article:

Almost exactly a hundred years after the Permanent Settlement of 1793 revolutionized property relations in Bengal, a far less studied legislation would subtly extend the rule of property to include the province’s waters. Bengal’s Private Fisheries Protection Act 1889, which is usually regarded as having been motivated by conservationist or economic concerns, was in fact an attempt to resolve intractable legal problems surrounding the status of flowing waters and fish that had confounded judges and colonial officials in India for decades. Could water be owned like land? And could fish swimming in open waters be claimed as property? These questions would give rise to a number of important disputes in colonial India in the late nineteenth century, during a time associated with unprecedented changes in the agrarian economy. Coinciding with other legal manoeuvres that increasingly helped to render water as property in other parts of the world, the Private Fisheries Protection Act and important judgments that preceded it helped to create exceptional private rights over flowing waters in colonial India. Turning to these developments, this article examines the ways in which judges attempted to resolve contradictions generated by water’s very materiality in an economy that rested so heavily on property.

Devika Shankar, A line of fishing stakes on the Malabar coast, July 2018

Friday, March 11, 2022

International environmental law panel for ASLH

Reposting from H-Environment:

Dear all,

I am a doctoral candidate at Rutgers University New Brunswick, and I am currently seeking co-panelists for the American Society of Legal History conference to be held in Chicago, Illinois, November 10-12, 2022. The conference welcomes papers dealing with legal history from any time period or geographical area, but is only accepting panel proposals. I am seeking to put together a panel dealing with international environmental law in the 20th century, in the broadest possible sense. My paper specifically will talk about the interplay between international conservation efforts and French national interests in the creation of a "French Antarctic national park" in the subantarctic Kerguelen Islands in 1924.

Here is a link to the ASLH website For more information: https://aslh.confex.com/aslh/2022/cfp.cgi

Panel submissions are due March 18th. I know this is a short turn around but I hope to find interest through this forum. The ASLH is a great organization that offers a helpful forum for discussing a broad range of legal history topics, and is especially supportive of graduate students and early career scholars.

Please feel free to contact me at kms557@history.rutgers.edu if you are interested in joining this panel.

All best,

Katherine Sinclair

Bruno Navez, Remains of vats and boilers at Port-Couvreux, Kerguelen Islands, used for the making of elephant seal oil at the beginning of the XXth century