Law in the wake of the Exxon Valdez

Elisabeth Fontugne has posted "Dismantling the Exxon Valdez: How Misunderstanding One Maritime Accident Led to the Criminalization of an Entire Profession". The abstract:

Workers cleaned a beach in Alaska
after the Exxon Valdez supertanker
spilled 11 million gallons of crude oil in 1989.
credit: John Gaps (AP), NY Times

In 1989, the tanker Exxon Valdez ran aground, spilling enough oil to deface the beaches and inlets of Prince William Sound. A year and a half later, Congress spoke, passing the Oil Pollution Act of 1990. And twenty years later, the Supreme Court enunciated a new bright-line rule for punitive damages in maritime cases, closing out the long years of litigation that had followed the spill. For seafarers, however, the grounding of the Exxon Valdez only marked the beginning. It heralded the advent of an era in which the global criminalization of mariners would become the rule. Putting out to sea had always been risky business. But making landfall, in the wake of the Exxon Valdez spill, could prove more perilous to mariners than any ocean journey. Against the judiciary’s successive interpretations of the tanker’s accident, this Article argues that the grounding of the Exxon Valdez can only be properly understood within its maritime context. It demonstrates that the real punishment for the spill was imposed not on Exxon, but on the men and women who choose to live and work at sea. Finally, it exposes the unfair legal climate in which mariners must now operate, and urges the seafaring community to act to change the law.

The Polluter Pays Principle

Muhammad Munir has posted "History and Development of the Polluter Pays Principle", an article tracing the history of the often-invoked principle in economic and legal thought. The article begins with economists AC Pigou, AV Kneese, and others, and proceeds through legal developments, including the 1968 Draft Declaration of Principles on Air Pollution Control by the Committee of Ministers of the Council of Europe and an OECD seminar in 1971. The abstract:

from EESC glossaries

This work traces the history of the polluter pays principle (the PPP) in the early economic literature from 1920s. The OECD recommended the PPP as the ‘Guiding Principle Concerning the International Economic Aspects of Environmental Policies’ in 1972. In 1973 the Council of the European Communities approved the First Program of Action on the Environment and the PPP was made one of the principles of Community environmental policy. The PPP has been mentioned as one of the principles in many regional and international conventions the PPP remains as a principle of environmental policy. The polluter pays principle is one of the most efficient principles of environmental policies.

Histories of deregulation

Dan Farber has posted a review of Thomas McGarity's Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival (Yale UP, 2013), and has a more optimistic take on recent US regulatory history than McGarity does. According to the book's website, it

tells the story of how the business community, and the trade associations and think tanks that it created, launched three powerful assaults during the last quarter of the twentieth century on the federal regulatory system and the state civil justice system to accomplish a revival of the laissez faire political economy that dominated Gilded Age America.  Although the consequences of these assaults became painfully apparent in a confluence of crises during the early twenty-first century, the patch-and-repair fixes that Congress and the Obama administration put into place did little to change the underlying laissez faire ideology and practice that continues to dominate the American political economy.  In anticipation of the next confluence of crises, Thomas McGarity offers suggestions for more comprehensive governmental protections for consumers, workers, and the environment.

Farber, on the other hand, thinks opponents of regulation have been less successful than in the picture McGarity paints:

Experts and environmental law

An important theme that somehow hasn't come up yet on this blog is the place of experts in the history of environmental law. The issue was explored in Susan Owens's article in last year's Journal of Environmental Law, "Experts and the Environment--The UK Royal Commission on Environmental Pollution 1970-2011". The abstract:

The UK Royal Commission on Environmental Pollution, first appointed in 1970 and abolished in 2011, has been credited with important developments in environmental policy and legislation. This article examines the Commission’s influence in the context of wider questions about expertise and policy formation in modern democratic societies. After presenting a brief biography of the Commission, it sets out four different ways in which the role of expert advisory bodies has been conceptualised. It then examines the circumstances in which the Commission exerted influence and identifies the practices and characteristics that helped build its reputation and enabled it to have effect. Especially significant were its composition as a ‘committee of experts’, its autonomy, its positioning within networks, and its endurance over four, formative decades for environmental policy. The analysis suggests that influence might be best thought of in terms of a continuum of different effects, that advisory bodies can simultaneously perform multiple roles, and that relations between expertise and policy are necessarily both complex and contingent. Finally, some thoughts are offered on the Commission’s demise and on the tensions that have to be negotiated in considering the future of expert advice.

Calling all graduate students: WHEATS now accepting applications!

WHEATS--aka  the Workshop for the History of Environment, Agriculture, Technology and Science aka one of the most inspired acronyms on the history workshop circuit--is going to be held at the University of Kansas on Feb. 7-9. This is a terrific opportunity for graduate students to workshop dissertation chapters or prospectuses. The relevant deadline is Nov. 15. The call for papers is after the jump...

Arizona v California reconsidered

The spate of scholarship on the US Supreme Court interstate water apportionment case of Arizona v California continues unabated (for earlier posts see here). Robert Glennon and Jacob Kavkewitz have posted "'A Smashing Victory'?: Was Arizona v. California a Victory for the State of Arizona?". The abstract:

Ansel Adams, Photograph of the Boulder Dam
from Across the Colorado River, 1941

Fifty years ago, the U.S. Supreme Court handed down the most important decision in the State of Arizona’s history. Arizona v. California allocated the flow of the Colorado River among the three Lower Basin states (Arizona, California, and Nevada) according to terms of the 1928 Boulder Canyon Project Act (BCPA). Arizonans rejoiced. However, Arizona’s reaction seems perplexing, given that the State spent decades denouncing the BCPA. Arizona challenged the BCPA numerous times in the Supreme Court and engaged in fierce political battles to block its implementation.

Evolutionary biology and property rights

Kathryn Elizabeth Loncarich has posted "Nature's Law: The Evolutionary Origin of Property Rights". The abstract:

While the scientific community has widely accepted that evolution has significantly shaped human behavior, legal scholars have largely ignored the influence of evolution on our property system. A wide range of species exhibit behavior indicating respect for ownership, and it is believed that this behavior evolved as a competitively favorable strategy. Animal displays of ownership look strikingly similar to common law property rights, including the rights to exclude and exclusive use. Given that evolution has shaped the behavior of both humans and animals, much of our common law conception of property may in fact be based on inherited, ingrained concepts of ownership. Evolution, however, merely produces “good enough” results based on historic environmental conditions. By analyzing our property system through the lens of evolutionary biology, we come to understand that our default property rules are neither inevitable nor ideal, and we are liberated to design and implement alternative property rules to better fit our modern society.

RIP Ronald Coase

Nobel Prize-winning economist and law school professor Ronald Coase passed away earlier this month at the age of 102.

Coase's 1960 article, "The Problem of Social Cost", the most-cited law review article of all time, had an immense effect on both the study of environmental law and its design, providing intellectual backing for two prominent trends in environmental law of the last few decades: market-based policies and cost-benefit analysis. As Cass Sunstein explains:

His target was the great British economist Arthur Cecil Pigou, who contended that if a polluter is emitting smoke, and thus causing injury, the best response is to make the factory owner pay for the injury or to impose a corrective tax.

Coase said Pigou failed to see “the reciprocal nature of the problem.” Suppose that a very noisy factory is causing legal injury to a doctor operating next door. Under Pigou’s approach, the factory should be required to pay damages to the doctor. But Coase pointed out that we could also make the doctor bear the cost. His central insight was that if people can bargain with one another, and if it isn’t costly for them to do so, it just doesn’t matter who is required to pay: People will negotiate their way to the efficient solution. This is the Coase theorem in a nutshell.

Diffusion of constitutional environmental rights

Here's a paper that goes to the important historical question of how and why environmental legal norms are transplanted, diffused, received, or what have you, between legal systems.

Constitutional Environmental Protection in 1980

Constitutional Environmental Protection in 2010

(figures from the article)

Jerg Gutmann, Sina Imhof, and Stefan Voigt have posted "Are You Green Yet? On the Diffusion of Constitutionally Protected Environmental Rights". The abstract explains:

Over the last couple of decades, ever more countries have integrated environmental rights into their constitutions. Drawing on discrete time survival analysis techniques, this paper identifies the determinants of the introduction of such rights. It turns out that a country’s level of democracy, its legal tradition, the sustainability of its tourism sector, and the implementation of major changes to the constitution are statistically significant predictors of an entrenchment of environmental rights in national constitutions. Other plausible explanations can be discarded. Income, affectedness by extreme weather events, citizens’ initiatives, dependence on fossil fuels or agriculture, and stated ecofriendly attitudes or behavior are not associated with a higher propensity for constitutional environmental protection. However, we find robust evidence for a diffusion of constitutional environmental rights among spatially proximate countries.

Book reviews on the history of water law

The University of Denver Water Law Review has posted a number of reviews of books on water law history topics. 

Chris Stork reviews Daniel McCool's River Republic: The Fall and Rise of America’s Rivers (Columbia UP, 2012); Heidi Ruckriegle reviews my own The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012); and more.

Mahogany in early America

The latest issues of Law and History Review and Environmental History both review Jennifer Anderson's Mahogany: The Costs of Luxury in Early America (Harvard UP, 2012). The reviews highlight the way the interaction of environmental history and legal history can shed light on wider topics such as labor, slavery, and empire.

Jeffrey Kosiorek in EH emphasizes the importance of environmental history for the wider social and economic history:

Anderson recognizes throughout that the cultural value of mahogany and its social, political, and economic importance through history cannot be separated from the ecological realities of the trees and the ecosystem they inhabit. For instance, the rich beauty, durability, and size of the wood that made it so desirable is itself a product of the tree’s tropical environment where it grows year-round leaving tightly packed, indiscernible growth rings. Widely dispersed amid many other species, harvesting mahogany not only resulted in deforestation, but it also allowed slaves a degree of autonomy and local knowledge that they could use to gain their freedom. Likewise, the trees’ limited range set off a scramble to control its territory among European powers and individual speculators.And, as extractors depleted the choicest trees, smaller, inconsistent mahogany lumber came on the market, causing a shift in consumers’ taste and understanding of the wood.

Zachary Dorner's review in LHR has more of a legal emphasis: