Friday, August 2, 2019

Just out in the Journal of Policy History: Peter Siskind's "'Enlightened System' or 'Regulatory Nightmare'?: New York's Adirondack Mountains and the Conflicted Politics of Environmental Land-Use Reform During the 1970s". The abstract:
This exploration of the politics of land-use reform in New York's vast Adirondack Mountains provides a revealing window onto the ambiguities, evolution, and importance of environmental liberalism during the 1970s. A distinctive set of circumstances, featuring forceful advocacy by Governor Nelson Rockefeller and propitious political timing, led to the creation in the early 1970s of one of the most ambitious state-level environmental reforms in modern American history. But implementation during the mid- and late 1970s proved challenging. Environmental management by a new regional agency that possessed powerful regulatory authority over all public and private lands in the region produced discontents, distrust, and organized opposition among both developers and property-rights advocates on the right and environmental advocates on the left. The result was an uneasy, enduring legacy: the new regulatory institution and key environmental planning ideas of the early 1970s and the later, wide-ranging discontents would coexist in similar forms for decades to come.

Saturday, July 27, 2019

Water and Waterways Management in the Roman Empire Workshop

In unusually good timing, following on last week's post on Roman water law, the Edinburgh Legal History Blog posted the other day on a workshop recently held at Edinburgh's Centre for Legal History on the management of water resources and waterways during the Roman period. The blog reports:
The papers were grouped into three themes: (i) the management of waterways; (ii) the management of land adjacent to waterways; and (iii) the exploitation of water resources.
The central aim of the workshop was to explore the potential and challenges of studying a historical problem from the perspective of different sets of evidence. From this point of view, the conference was a success. The management of water resources was an ideal subject, partly because the effective exploitation of water was essential to both agricultural and urban development in the ancient world. Moreover, the contributions of archaeologists and lawyers combined to lend an insight into the integrated technical and legal strategies that the Romans employed to the challenge of supplying water to the places it was required. In the case of rural communities, for example, irrigation was a central concern; while cities frequently relied upon rainwater collection and aqueducts to provide for their populations. Maintaining the navigability of waterways (both natural and man-made) was also an important task. In all these cases, the construction and maintenance of the necessary infrastructure was facilitated by the Roman legal framework, which provided remedies designed to govern the relationships between the individuals engaged in these tasks.
The workshop program is here.
Legal historians under the Roman aqueduct near Caesarea, Israel, 2017

 

Thursday, July 25, 2019

Streams of life and strife

Table IX of the Lex Irnitana – Museo Arqueológico de Sevilla
(image: Red Digital de Colecciones de Museos de España, http://ceres.mcu.es)
Last week Otto Vervaart's always learned Rechtsgeschiedenis Blog featured a post on water law: "Streams of life and strife: Water as a legal matter in Roman law". Some highlights:
The project Roman Water Law at the Freie Universität and the Humboldt Universität in Berlin helps to look at regulations concerning water and its uses according to an interesting scheme. Legal attention to water has a very long history.
*****
The core of the virtual collection is a combination of legal sources found in the Corpus Iuris Civilis, three individual leges (laws) and the Codex Theosodianus with texts from Roman authors who touched the subject of water. The results are 572 entries with a Latin text and English translation to which one of ten newly defined categories have been assigned.
The harvest for Roman laws in the technical sense, leges approved by the senate of the Republic, may seem meagre with just three laws. However, one of them, the Lex Flavia Irnitana from AD 91, was only found in 1981. The fragments of six out of originally ten bronze tables are now held at the Museo Arqueológico in Seville {Hispania Epigraphica, no. 5058). This law, dated around 91 BC, is the most complete surviving example of a Lex Flavia, a municipal law. Chapter 82 of the Lex Irnitana deals with drainage and creating and changing roads, paths, canals and sewers, for which only the duumviri, a pair of magistrates elected for one year, are authorized if there is a municipal decret for their actions.
*****
The core of the project are the classifications added to each entry. There are ten main types of classes, starting with definitions (44), followed by
Right to use water
Constructions to use water – Process of construction and maintenance
Legal protection of water use
Urban praedial servitudes of water
Regulation of damages and prevention of damage caused by water
Consequences of changes caused by water
Water as a route of transport
Water as a border
Buildings at banks, coasts and beaches 

Friday, July 5, 2019

A revised history of Chilean water law

The Chilean water code of 1981 is often held up as a paradigm of private property in water. Thomas Miller Klubock's new article in Environment and History, "The Early History of Water Wars in Chile: Rivers, Ecological Disaster and Multinational Mining Companies", provides some historical context. The abstract:
This article examines an early water war in Chile between local agriculturalists and the North American-owned El Teniente copper mine. It recovers a hitherto unknown history of ecological degradation caused by industrial copper mining during the twentieth century in Chile. It argues that contemporary water wars in Chile, usually viewed as a product of the privatisation of water rights in 1981 and the expansion of foreign investment in the mining sector during the 1990s, combined with the impact of global climate change, have roots in the appropriation of water in Andean rivers by North American companies at the beginning of the twentieth century. The article’s thesis is that the Chilean state subsidised the mining industry by granting water rights and turning a blind eye to mining companies’ contamination of rivers relied on by agriculturalists for irrigation. Finally, the article traces conservationist responses to the ecological crises produced by contamination of water and soil by the El Teniente mine, which was owned by the Kennecott Copper Company. It demonstrates that conservation of water resources was employed by estate owners as a means of asserting private property rights against the interests of mining companies.
Nicolas Schubert, Fundición de cobre en mina El Teniente, Codelco Chile

Thursday, June 13, 2019

Administrative procedure and environmental regulation

Legal History Blog recently published brief pieces by scholars visiting at Princeton's Davis Center this year, in which they wrote about their research. Some excerpts from Angela Creager's:
Why has environmental law, an area of widespread popular engagement and legal activity, met with such limited success in the last half century? Corporate money? Special interests? Neoliberalism? These usual villains are not innocent, but I am interested here in how companies and their lobbyists used provisions of law, namely the 1948 Administrative Procedures Act (APA), to thwart stronger regulation....
My focus has been the Toxic Substances Control Act (TSCA) of 1976. This was the first US law aimed at providing environmental and health oversight of all commercial chemicals. The act was introduced in 1971 as part of the Nixon administration’s environmental initiatives, and different versions of the bill passed both houses by the fall of 1972, only to die in Senate-House Conference Committee during the 92nd session of Congress. In 1974, amidst the Watergate scandal and Nixon’s resignation, the Senate and House of Representatives again passed different versions of TSCA. Once again, the legislation died in committee. Early on, it appeared that none of the bills would not become law, a simple solution for its opponents.
In July 1975, a scandal reignited political pressure for chemicals regulation. Dozens of workers at chemical factory in Virginia were poisoned through their exposure to Kepone, a neurotoxic pesticide manufactured in the plant. The Ford administration made it clear that some version of TSCA needed to be signed into law to appease political pressure. Representatives for the Manufacturing Chemists Association (MCA), a trade group representing the chemical industry, began hammering out the details of a bill with Congressional staffers. The final statute specified numerous procedural hurdles for EPA in fulfilling its mandate to regulate chemicals. These hurdles were not conceptual slipups, but compromises made to produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer who actually helped write the provisions, has said: “The 1976 Toxic Substances Control Act (TSCA) contains such obscure and inconsistent phrases that its supporters were doomed to frustration.” The legal scholar Kevin Gaynor, who analyzed the law shortly after it was enacted, called it “a regulatory morass.” Even its provisions “ensuring transparency of safety data” became “rigid procedural handcuffs.” This was a statute designed to make industry oversight difficult.
Many of these complexities had to do with how TSCA addressed requirements of the APA. For example, rather than make toxicity testing of commercial chemicals required for either old or new chemicals, the bill stipulated that EPA would have to issue a rule to require testing of any individual substance. Requiring rule-making on a chemical-by-chemical basis meant that the agency could only request testing data on a limited number of commercial chemicals, of the 60,000 on the market and thousands added each year. 
(from Environmental Working Group)

Tuesday, June 11, 2019

CFP: Race and Resilience Otherwise (for ASEH 2020)

[I'm passing on this call for papers for a panel being organized for the next American Society for Environmental History meeting. Readers should feel free to send me any relevant announcement!]

Race and Resilience Otherwise

What does “resilience” mean for black, brown, and indigenous people living in systemic racism? This guiding question builds from the spirit of the conference theme, “Reparative Environmental History,” and celebrates the discipline’s ongoing engagements with structural racist, classist, and colonial environmental oppression. Though resilience is used to orient us to the future of our environments (i.e. gaining abilities now to respond effectively to future catastrophes), like reparations, the concept actually requires close examination of past processes, active decentering of white settler histories, and embracing narrative frameworks that work with critical race theory. In reality, folks of color have been resilient and forced into holding patterns of “resiliency” within an unequal, unjust system for generations. In this panel, we want to continue thinking resilience otherwise by articulating critical environmental histories of race.  

This panel calls for contributions that center — rather than “include” — black, brown, and indigenous environmental histories to help us unpack this problematic of resilience, and therein reconsider the content and meaning of contemporary environmental restorative justice. We welcome scholarship on, for instance, histories of environmental racism, struggles for environmental justice, food sovereignty, colonial land dispossession, histories of BIPOC* environmental community building and belonging, and ways of knowing nature outside of modern, white supremacist capitalism.

*Black and Indigenous People of Color

Please submit proposed paper title and brief abstract (250 words max), along with your name, institution, and preferred email address to Lisa Avron (lisa.avron@gmail.com) by July 3rd.

Friday, April 19, 2019

LBJ's Green Great Society and environmental law

Dan Farber recently posted at Legal Planet on the environmental aspects US President Lyndon B. Johnson's "Great Society". From the post:
When he announced the Great Society in a commencement speech at the University of Michigan, Johnson gave the environment a leading place. He began his May 1964 speech with the plight of American cities, where he decried “the decay of the centers and the despoiling of the suburbs.” Then he turned to the environment: “The water we drink, the food we eat, the very air that we breathe, are threatened with pollution. Our parks are overcrowded, our seashores overburdened. Green fields and dense forests are disappearing.” He added, “For once the battle is lost, once our natural splendor is destroyed, it can never be recaptured. And once man can no longer walk with beauty or wonder at nature his spirit will wither and his sustenance be wasted.”
Johnson’s Presidency was accompanied by a surge of environmental laws. Here are some of the laws he signed:
1963 The Clean Air Act
1964 The Pesticide Control Bill
The Water Quality Act
The Wilderness Act
1965 The Water Resource Planning Act
The Water and Sanitation Systems in Rural Areas Bill
The Solid Waste Disposal Bill
The Safe Water Conservation Act
1966 The Air Quality Act
National Historic Preservation Act
Endangered Species Act
1967 The National Water Commission
Wild and Scenic Rivers
Wetlands Preservation Bill
Many of these laws are remembered today only as the preludes to the stronger laws that followed in the 1970s. But these Johnson-era laws provided the foundation for that later legislation, and they set the precedent for vigorous federal protection of the environment.
For a different list of environmental laws signed by LBJ, see here.

Friday, April 12, 2019

Coke, Popham, and Commissions of Sewers

Eric Ash's The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016) was recently reviewed by Bob Silvester in Environment and History (for an interview with the author see here). Famous common law judges play a big role in this story. The review reports that Ash:
Sir John Popham,
copy by George Perfect Harding, after unknown
succeeds admirably though is in fleshing out the procedures – there is a masterly commentary on the commissions of sewers – and events that have been dealt with only cursorily in the past. Lord Chief Justice Popham’s plans to dry out the Great Level, which resulted in little more than the construction of a large drain known as Popham’s Eau lying east of March in Cambridgeshire, seemed an obscure event when I worked in the Fens in the 1980s...; just what Popham sought to achieve and how it fitted into the overall sequence of drainage ventures is now much clearer through the careful analysis of archival material.
Regarding the author's statement that his "principal goal is to use the drainage projects to connect the broader political, economic, social and environmental developments of the era", Silvester writes that "there are times when fenland drainage appears to be subsumed within a broader discourse as simply an outstanding example of state-building in progress. It accounts for the lengthy digression on Lord Chief Justice Coke’s interference in fenland affairs around 1609".

For more on Commissions of Sewers and drainage law, see here.

Saturday, April 6, 2019

The "government take" and environmental protection

Suncor oilsands mine near Fort McMurray (Todd Korol, Toronto Star)
Though Israel's coming elections revolve around other issues (and non-issues), a major political issue in Israel over the last decade has been how to divide the profits of the country's natural gas finds between the developers and the public (the legal owners of the resource). While environmental groups have argued - and this has also been my natural inclination - that the public's ownership should be expressed with a relatively large "government take" (the percentage of revenue paid over to the state in the form of royalties and taxes), I have also noted that increasing the government's financial interest in the gas decreases its motivation to effectively regulate the environmental aspects of its development.

Hereward Longley's recent article in Environment and History, "Conflicting Interests: Development Politics and the Environmental Regulation of the Alberta Oil Sands Industry, 1970–1980", provides historical support for this argument. The abstract:
This article examines the relationship between development politics and environmental regulation and research during the first commercial development phase of the oil sands industry. As demand for oil grew after the Second World War, and oil supplies from the Middle East became less stable, oil companies began building facilities to produce synthetic oil from the bitumen deposits in north-eastern Alberta. The commercialisation of the oil sands industry coincided with the formalisation of environmental policy at both the provincial and federal levels. When the Progressive Conservative Party, led by Premier Peter Lougheed, formed a government after winning the 1971 election, it strengthened and expanded the scope of environmental regulation into the mid-1970s. The 1973 oil crisis changed the economic viability and importance of the oil sands industry. For Lougheed, the oil sands industry became a cornerstone of the PC government’s goals to diversify the Alberta economy. To save the Syncrude project after Atlantic Richfield withdrew its thirty per cent stake in the consortium in December 1974, the Alberta government bought a ten per cent position along with the federal government and Ontario. This article argues that investing in the oil sands industry created a conflict of interest for the Alberta government, as it became both the regulator and the developer of the resource. Using a range of archival sources and oral history, it shows how Alberta’s environmental policies and research programmes were sidelined by the Lougheed government in the latter half of the 1970s, culminating in the cancellation of the Alberta Oil Sands Environmental Research Program in 1980. The marginalisation of environmental regulation and research has contributed to the environmental impacts of the oil sands industry on ecosystems and Indigenous communities, and limited public awareness of environmental change.

Friday, March 29, 2019

Mongolian hunting regulations

The Qianlong Emperor Hunting Hare, by Giuseppe Castiglione (1755)
Last year Inner Asia published Khohchahar Chulu's "The Formation and Regulations of the Military Hunt in Qing Mongolia". (Thanks to Mitra Shirafi at Legal History Blog for noting it.) The abstract:
In the Mongolian tradition, hunting and war have had strong connections with each other. During the Qing Empire, Mongolian hunts were not only local practices, but were also involved in the Qing empire-building project. On the other hand, the collective hunt itself was by nature a dangerous activity that contained potential physical risks from wild animal attacks as well as human errors. It is conventionally understood that the hunt therefore must have been well organised in order to secure success and security. But how a hunt was organised and operated in reality has not yet been well examined. This study explores the organisational structure and regulations of a military hunt in Qing Inner Mongolia, a geographically important zone where both the Manchus and Mongols actively held hunts. The primary focus of this article is the nineteenth-century Alasha Banner grand hunt, a well-organised and documented Mongolian military hunt from the Qing period.