American Indians and the American environmental movement

Paul C. Rosier's "'Modern America Desperately Needs to Listen': The Emerging Indian in an Age of Environmental Crisis" appears in the December issue of the Journal of American History. The article

examines American Indians’ perspectives on the “environmental crisis” that shook American society in the 1960s and 1970s. Indian activists, politicians, and intellectuals promoted ecological issues tied to political and legal questions of sovereignty commonly associated with Indians’ “red power” movement, while collaborating with non-Indians on environmental problems to find political support and common ground. His essay addresses the neglect of American Indians in coverage of the 1960s and modern environmental activism and underscores the relationship between political sovereignty and environment, the interplay of symbolic space and real place, and the roots and range of the environmental justice movement. He also offers an example of how Indians’ ideas and actions can be integrated into the broader narratives of modern American history.

There is a prominent legal dimension to the story, as Indians made legal claims based, among other things, on land ownership and treaty rights. Rosier describes an early example:

EPA, Closed Area of Quinault Tribal Beach (1972)
NARA

19th-century controversies over groundwater

The new issue of History Today has an article by Raymond Smith, "Fractious Waters", on historical precedents of current controversies over "fracking". Smith writes:

Pump and ventilation shaft in operation,
Kilsby railway tunnel, Northamptonshire, 1837
(History Today)

Although springs have been used from pre-human times and wells since pre-history, the intense exploitation of water supplies is less than two centuries old. Part of the impetus for using groundwater was the sheer quantity of water that had to be disposed of from some railway cuttings and tunnels, which helps to explain the interest of the engineer Robert Stephenson, who commented in 1840 on the ‘enormous reservoir which nature has supplied us with in the Chalk’. Not surprisingly the chalk aquifers around London were a focus for the early discussion. London was the hub for the new railways and had a growing demand for water due to  its rapidly swelling population and the demands of sanitation.

The advocates of the use of groundwater emphasised unlimited opportunity. The initial attempts to exploit it were often founded on unthinking enthusiasm and many early schemes were abandoned. By the 1870s, however, scientific understanding and the use of technology was sufficiently advanced to establish a groundwater industry.

Scholarship trends in international environmental law

Over at Legal Planet Dan Farber asks, "What do the numbers show about the trajectory of scholarship in international environmental law?":

It can be difficult to identify patterns  in legal scholarship.  One way of doing that is to check on the frequency of key words, using Westlaw or Lexis-Nexis to track the numbers.  There are some interesting patterns in scholarship on international environmental law:

1. The field came into its own in the decade from 1987 and 1997.  Indeed, the phrase “international environmental law” was barely used at the beginning of that decade but commonplace by the end.
2. Key ideas from international environmental law such as sustainable development and the precautionary principle have found footholds in U.S. scholarship.  Attention to these concepts grew continuously from 1987 to 2007 but may have stabilized since then.
3. There has been steadily growing attention over the past 15 years to international agreements dealing with climate change and oceans.

His blog has the numbers.

Environmental law and the collapse of New Deal constitutionalism

Arthur McEvoy's recent article, "Environmental law and the Collapse of New Deal Constitutionalism", he writes, is a précis for a book in progress about the history of late twentieth-century U.S. environmental law, a book to which I am very much looking forward. (His The Fisherman's Problem (Cambridge UP, 1986) is a key work of environmental-legal history.) The article, he writes:

FDR

argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New Deal regime as a whole, as it reached the peak of its vigor in the early 1970s and decayed gradually but steadily thereafter.

100th anniversary of the Raker Act

Over at Legal Planet, Richard Frank writes:

December 19th marks a sad event in American environmental history.  It was 100 years ago today that President Woodrow Wilson signed the Raker Act, authorizing the City of San Francisco to build a dam that would flood the Hetch Hetchy Valley in Yosemite National Park in order to deliver water supplies to San Francisco.

Albert Bierstadt, Hetch Hetchy Canyon (1875)

Contemporary accounts–including those of John Muir–attest to the stunning beauty of the Hetch Hetchy Valley. (Muir wrote: “Hetch Hetchy Valley is a grand landscape garden, one of Nature’s rarest and most precious mountain temples.”)  In its natural state, Hetch Hetchy was considered an ecological twin of the world-renown Yosemite Valley that lies, relatively undisturbed, a few miles to the south.

San Francisco’s construction of the O’Shaughnessy Dam on the Tuolumne River flooded the Hetch Hetchy Valley under 300 feet of water, turning it into a municipal reservoir. Public access to this portion of Yosemite National Park has been limited for decades and, compared to its natural state, there’s not a lot see or enjoy there in any event.  John Muir considered the destruction of the Hetch Hetchy Valley to be his biggest political failure, and a national tragedy. 

Frank goes on to discuss current debates about whether the dam should be dismantled and Hetch Hetchy restored.

Four decades of US environmental law

Two articles by Denis Binder reflect on environmental law in the US since around 1970. "Perspectives on 40 Years of Environmental Law" examines some of the causes of the outburst of legal activity in the field after 1970, as well as several key judicial doctrines, legal theories, and more. "Looking Back to the Future: The Curmudgeon's Guide to the Future of Environmental Law" is a wide-ranging survey of environmental lawmaking by American legislatures and courts, from the beginning of European settlement in North America. It covers many legal developments not typically mentioned in historical surveys of environmental law, such as the Submerged Lands Act of 1953 and the Swamp Land Acts of the mid-19th century.

from Arkansas Commissioner of State Lands site

North and South and "sustainable development"

Over at "The View from the South", Charles McKelvey recently posted on the history of the idea of sustainable development. An excerpt:

Vinales Valley, Cuba
(Eco Cuba Network)

The evolution from development to sustainable development was tied to what Pearce and Warford (1993) [World Without End: Economics, Environment, and Sustainable Development, OUP] have called the second environmental revolution.  The first environmental revolution of the 1960s had seen economic growth and environmental protection as irreconcilable opposites, always in conflict.  But the second revolution of the 1980s did not question the need for growth.  Rather, it sought to define how to grow, or how to develop in a form that is sustainable.

The Cuban scholar and environmental specialist Ramon Pichs (2006) [“Medio Ambiente y Desarrollo, 1964-2004” in Libre Comercio y subdesarrollo, La Habana: Editorial de Ciencias Sociales.] maintains that the turn to sustainable development occurred as a result of the participation of organizations and movements of the Third World in the global process of reflection on environmental issues.  From the point of view of the Third World, the ecological revolution of the 1960s, with its call for conservation and for constraints on economic growth, made sense in the context of the developed societies, characterized by over-production and irrational patterns of consumption.  But limiting growth was not a reasonable approach for the underdeveloped societies, which did not have productive patterns that could provide even basic human needs, as a consequence of the neocolonial situation.  However, the Third World discerned from the outset the importance of the ecological revolution as it developed from the 1960s through the 1980s, given its consciousness of the contaminating effects of the prevailing patterns of production and of the global scope of environmental problems.  Thus, Third World participation in the discussion led to a reformulation of the issue, and sustainable development emerged as a new consensual understanding. 

Urban origins of "regulatory takings"

Michael Allan Wolf has posted "The Brooding Omnipresence of Regulatory Takings: Urban Origins and Effects". From the article's introduction (with notes omitted):

Collapsing Scranton coal mines were
at issue in the seminal case of
Pennsylvania Coal Co. v. Mahon (1922)

The concept of a regulatory taking, or technically “inverse condemnation,” made its first appearance on page ten of the very first issue of the Fordham Urban Law Journal in 1972, when New York Attorney General Louis J. Lefkowitz made the following observation in his lead article: “The courts have reduced the scope of [the usque ad coelum] doctrine, allowing an owner aggrieved by noise from overflights to recover damages for what is termed an inverse condemnation, while holding that the doctrine does not justify the granting of an injunction against overflights.” That first article—Jamaica Bay: An Urban Marshland in Transition—is an early example of what we now call “urban environmental law,” in which the author discussed public trust, wetlands protection, NEPA, public nuisance, and noise, air, and water pollution.

What makes for a successful environmental campaign?

Over at Legal Planet Jonathan Zasloff asks, "Why Did the Mono Lake Campaign Succeed?":

Environmentalists celebrate the campaign to save Mono Lake as one the iconic triumphs in US environmental history.  As well they should.  But why did it succeed?  It’s a critical question not just for environmentalists, but for any scholar or member of social movements.

After positing his own hypothesis--the identity of the adversary (in the Mono Lake case, the LA Department of Water and Power), and discussing the explanation given by Marshall Ganz for the success of Cesar Chavez's United Farm Workers' movement, Zasloff asks readers:

Which failed environmental movements, particularly of the 70′s and early 80′s, might form a useful comparison case for Mono Lake?  The time period is crucial, in my view: this was a good time for environmental politics, especially in California, so to make the comparison fair, one has to get the time right.  Moreover, it should relatively discrete: you can’t make good comparisons between Mono Lake, and, say, “water quality” or “oceans.”  it would be best to find another campaign to save, well, a like, but that’s hard: maybe a relatively discrete species.

So what about it?  What’s a good comparison?  And what can we say about why it failed?

50th anniversary of the US Wilderness Act

The website of the 50th Anniversary National Wilderness Planning Team (Wilderness50) is dedicated to celebrating the 50th anniversary of the 1964 Wilderness Act:

In 2014, our nation will celebrate "50 Years of Wilderness" and this website has been created to document this historical commemoration honoring America's "True American Legacy of Wilderness." A national team, called Wilderness50, has been created to plan educational events, projects, programs, and products to raise awareness of wilderness during the 50th anniversary year. This website provides a map and listing of all local, regional, and national 50th anniversary events that are occurring nation-wide, including the National Wilderness Conference. It also provides access to resources for individuals or community groups interested in hosting a 50th anniversary event. 

The deadline for proposals for the conference, to be held in Albuquerque October 15-19, 2014, is January 10, 2014. Scholarships are available.

Contributions are also being solicited for contributions to a Smithsonian Museum of Natural History exhibit entitled, "Wilderness Forever: 50 Years of Protecting America's Wild Places", set to open next September.

The Environmental Moment

Environmental History has a review by Gary Kroll of The Environmental Moment, 1968–1972, a collection of primary-source documents edited by David Stradling (U Washington Press, 2012). The book contains a number of classic legal sources, including the National Environmental Policy Act and Justice Douglas's iconic dissent in Sierra Club v. Morton ("Mineral King"), in which he argued for granting standing to inanimate natural objects, as well as "voices—Reagan, Joseph Ling, and John Maddox—of those who opposed or criticized the costs of new forms of regulation."

Kroll writes:

The central purpose of this collection is to capture that heady period of protest and response between 1968 and 1972, but Stradling sends out tendrils both fore and aft and all the while directs us to interpretive themes that have emerged from the social turn in environmental historiography.

He sums up:

By and large, Stradling has given me something that is hard to resist.

More on "The Mortal Sea"

A while back we re-posted George Conk's review of W. Jeffrey Bolster's award-winning The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). Now Environmental History has a review of the book by Michael J. Chiarappa. From the review:

Desiring “to write the ocean into history,” Bolster connects the fate of the northwest Atlantic's ecosystem to critical European antecedents that have not been fully examined in a transatlantic context. Given the depletion that had occurred in their home waters, sixteenth- and seventeenth-century Europeans gradually brought the northwest Atlantic's abundance—indeed, a stark contrast to the Old World's crippled marine ecosystem—into their commercial orbit. As permanent settlement ensued along the New England coastline, fishing effort began restructuring the sea's biomass by targeting species that were within ready reach—anadromous fish, sea mammals, and waterfowl, as well as nearby stocks of cod and mackerel. Sublime abundance, accompanied by a providential mindset, fueled these early use patterns. But Bolster challenges us not to be overly seduced by this narrative, and instead, to consider the rumblings of a nascent precautionary approach among New Englanders who still had Old World depletion fresh in their minds.

The paradox of precautionary sentiment, of wanting to fish but also wanting to preserve fish, runs throughout The Mortal Sea. In the nineteenth century, more efficient harvesting technology sharpened these debates in both tone and substance as signature sea fishes such as cod and mackerel showed stress, along with their forage base, menhaden. In a political and cultural climate that was hardly inclined to deny fishing rights, competing claims and perspectives devolved along various lines, but one loomed large: whose experience, be it small-scale fishermen, scientists, politicians, or capital-intensive fishing firms, would exert authority and be credibly accounted for in reckoning the increasingly complicated environmental politics of the northwest Atlantic?

Whales, seals, and foxes

Chris Tomlins recently posted "Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America", an extended and thoughtful comment on three articles from the University of Toronto Law Journal’s symposium on ferae naturae and the law of property (by Angela Fernandez, Robert Deal, and Bruce Ziff), containing, as well, extended reflections on Moby-Dick and on Robert Ellickson's Order Without Law.

The article, and the works it discusses, have a lot to say about the legal histories of whale-, seal-, and fox-hunting. Tomlins ends with some thoughts (condensed here, and with footnotes omitted) about directions that have not been taken in these histories:

from a diligent observer

Throughout Moby-Dick, the whale remains enigmatically silent. Historians don’t think much of those who ventriloquize (speak for) silent others. It is considered better form to try to find their voices so they can speak for themselves. Still, the void is sorely tempting. We know what Ahab said to the whale, at the end, on the way down: ‘to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.’ One wonders what the whale might have had to say in reply. I fancy what we would hear would be sad and bemused: these humans, their God, His promise of redemption, His grant of dominion . . . all so unfortunately unavoidable.

*****

Perhaps these cases may eventually help us to find our way to the animals rather than just to the law. 

Green Capitalism?

Here's a call for papers by the German Historical Institute in Washington that may be of interest to those working at the intersection of legal and environmental history: "Green Capitalism? Exploring the Crossroads of Environmental and Business History", a conference to be held October 30-31, 2014 at the Hagley Museum and Library in Wilmington, Delaware. From the call:

from Alex Hetherington
Sustainability Blog

We invite papers that consider in specific historical contexts the extent to which the business enterprises that are central to capitalism operated in an environmentally sound or detrimental manner by the way they dealt with their refuse, by managing their use of resources, and mitigating or ignoring any harmful impact on those who handled their products or are affected by their waste. Though business activities have had many deleterious environmental consequences, businesses sometimes have acted to protect the environment, reduce their direct and indirect environmental impact, and promote environmental reform in society. That is true now, but it also was sometimes the case long before the rise of modern environmentalism.

Proposals are due May 14, 2014. More here.

The history of precaution

A little while back Noga Morag-Levine posted on "The History of Precaution" over at RegBlog. Her work on the topic is a good example of how historical research can help make sense of current legal and policy issues, in this case the proper understanding of the much hyped and much maligned "precautionary principle".  As Morag-Levine explains,

comparative environmental scholars have recently focused their attention on whether, when, and why Europe has become more precautionary than the United States. This inquiry has entailed a debate on the capacity of distinct American and European regulatory traditions to account for transatlantic divisions. The Reality of Precaution, by Jonathan Wiener with several co-editors, and The Politics of Precaution, by David Vogel, are among the most notable contributions to this discussion.  The two books concur that any such legal-institutional traditions are irrelevant to the question at hand.

Morag-Levine thinks otherwise:

These disparate views of regulatory autonomy correspond closely to the divergent administrative law traditions of continental and Anglo-American law.   Debate over health and safety regulation in both Britain and the US during the 19th Century revolved around competing models of administration—the first termed “nuisance,” the second “police.”

Environmental-legal history in the US Supreme Court

The 1920 US Supreme Court case Missouri v Holland (252 U.S. 416), which upheld the constitutionality of the federal law implementing the US-UK/Canada Migratory Bird Treaty Convention of 1916, an early environmental treaty, is at issue in a case currently before the Supreme Court. The case's soap-opera details (described by Holly Doremus over at Legal Planet), involving a woman's attempt to poison her best friend, pregnant with a child fathered by the poisoner's husband, raises the constitutional issue of whether an international treaty gives the federal government jurisdiction over an activity taking place within a single state. Doremus explains the historical background:

Congress’s first effort at protecting migratory birds from lax state hunting regulations had been struck down as exceeding federal constitutional authority. After the President negotiated the Migratory Bird Treaty with Canada, Congress tried again, imposing essentially the same restrictions based on the Treaty. This time the litigation reached the Supreme Court and the US won. The Court held that:

It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could . . .

Environment at ASLH - Report

I wasn't able to make it to all the environment-related papers at this weekend's annual meeting of the American Society for Legal History in Miami, but here's a brief report of the papers I heard:

Friday morning's exchange panel with the Israeli History and Law Association had two papers on environmental topics. Yair Sagy and Nadia Tzimerman's “‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952” uncovered the decisive influence of an American oilman and his Israeli son-in-law on the shape of the statute governing oil and gas exploration and exploitation in Israel, a law which has emerged from its longstanding obscurity in the wake of recent major finds of natural gas off Israel's coast. (Sagy and Tzimerman's research was the subject of recent press coverage in Israel, where legal and political battles over the law are raging.) Orli Sela's “TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel” talked about the influence of American law and figures such as Walter Lowdermilk on the Israeli Water Law of 1959.

Later in the day I heard a paper by myself as part of a panel on attitudes to American law in nineteenth-century Canada. My paper, “How Smoothly Did U.S. Water Law Flow Northwards?”, examined the use that Canadian riparian-rights cases made of American sources in the first half of the nineteenth century, noting that Canadians often cited these sources not only for their statements of American law, but also for their statements of French water law.

At the same time, at the Kathryn T. Preyer Prize Panel, Matthew Axtell presented his “Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy”, a paper that we've noted previously.

Additional reports or comments on these papers or others are welcome!

Environment at ASLH

The upcoming meeting Annual Meeting of the American Society for Legal History in Miami (Nov. 7-9) looks to be strong on a variety of topics, but papers on the environment seem to be few and far between. Nevertheless the program promises a number of legal history papers, noted below, with an environmental angle (going by their titles). If you know of more, please let us know in the comments section.

Please also contact me if you're planning on attending the conference and are interested in meeting up with others interested in environmental aspects of legal history, or if you're interested in contributing a blog entry on some of these papers.



Friday

Panel A.5

Yair Sagy & Nadia Tzimerman, University of Haifa
‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952

Orli Sela, Bar-Ilan University
TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel

Panel C.3

David Schorr, Tel Aviv University
How Smoothly Did U.S. Water Law Flow Northwards?

Panel C.6

Matthew Axtell, Princeton University
Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy

Saturday

Panel D.4

Daniel S. Margolies, Virginia Wesleyan College
Imperial Reorderings in United States Extraterritorial Trade, Resource, and Regulatory Regimes, 1945-1958

An administrative history of the US Bureau of Land Management

The latest Environmental History has a review by James C. Lewis of James R. Skillen's "The Nation's Largest Landlord: The Bureau of Land Management in the American West" (University Press of Kansas, 2009). Lewis writes:

The BLM has always operated in the shadow of the Forest Service. To most easterners—and probably many westerners—the agency... still remains largely unfamiliar, its purpose unclear and amorphous. It has been that way since it formed in 1946 when Congress merged the Grazing Service and the General Land Office. For its first thirty years the BLM did not even have an organic act that laid out its mandate. Originally nicknamed “the Bureau of Livestock and Mines” because of the resource uses the agency emphasized, which also included logging, during those thirty years western congressmen deliberately limited its political power and worked to keep it a decentralized agency responsive to the needs of local users.

Passage of federal environmental legislation in the 1970s and an organic act in 1976 forced the agency to change how and why it managed its nameless lands (they finally received a name in 2008—the “National System of Public Lands”). In the 1990s, after ordered by the Clinton administration to manage ecosystem preservation, the BLM was dubbed the “Bureau of Landscapes and Monuments” because it became an agency more focused on preserving landscapes and welcoming of recreationists than it had been historically. The election of George W. Bush in 2000 saw the pendulum swing back toward an emphasis on resource development, leaving BLM employees and the general public confused again as to the bureau's mission and purpose. 

"Corporate Social Responsibility" and "Legal Origins"

"The Legal Origins of Corporate Social Responsibility", by Leonardo Becchetti, Rocco Ciciretti, and Pierluigi Conzo, relates the voluminous literature on the "Legal Origins Theory", which mostly focuses on the connections between finance law and economic development, and "corporate social responsibility" (CSR), a prominent buzzword in current environmental law and policy. The abstract:

from economyage.com

The legal origin literature documents that civil and common law traditions have different impact on rules and economic outcomes. We contribute to this literature by investigating the relationship between corporate social responsibility and legal origins. Consistently with the main differences in historical and legal backgrounds and net of industry specific effects, the common law origin has a significant and positive impact on the Corporate Governance and Community Involvement domains, while the French legal tradition of civil law on the Human Resources domain. We also document that the lack of observable differences in the environmental domain can be explained by firms' progressive convergence to industry sustainability standards.

Orcs in the history of environmental law. Really.

Thomas McGarity recently posted "EPA at Helm's Deep: Surviving the Fourth Attack on Environmental Law". The abstract:

In the second volume of J.R.R. Tolkien's The Lord of the Rings, Theoden, King of Rohan, learns that the armies of Saruman, the evil wizard, are advancing upon the defenseless city. He therefore orders the citizens to relocate to Helm's Deep, a massive fortress carved into the side of a mountain that has heretofore remained impenetrable. With the help of some elven allies who arrive in the nick of time from Rivendell, the Rohan soldiers repel wave after wave of attacks by the vicious Uruk-hai. As one wall is breached, the soldiers fall back behind an interior wall until at last there is nowhere to retreat. At that point, the king seizes the offensive, orders his soldiers to mount their steeds and take the battle to the enemy. Fortunately, at that moment Gandalf, a good wizard, returns to Helms Deep with a band of Rohan mounted soldiers, and the two armies put the enemy to rout.

For much of the past 30 years, the Environmental Protection Agency (“EPA”) and the laws that it administers have been under siege, much like the people of Rohan, from powerful economic, ideological and political actors who believe that the companies subject to EPA's regulatory authority should have greater freedom to go about their business unimpeded by “senseless” and “burdensome” regulations. The assaults came in three waves that peaked during the first years of the Reagan Administration, the first year of the 104th Congress, and the first six years of the George W. Bush Administration. During the first two years of the Obama Administration, EPA seized the offensive. Unlike the heroes of Helm's Deep, however, the forces of environmental progress were driven back behind the ramparts after only two years by a wholly unanticipated fourth assault from a reinvigorated business community that took advantage of an economic crisis brought on by the lack of federal regulation of the banking industry to inspire a populist uprising that inexplicably blamed federal regulation for the nation's current economic woes. Whether EPA and the foundational environmental laws that it implements will survive this fourth assault is by no means clear.

Bridging water law traditions

Peter Reich recently posted his Environmental Law Reporter article, "The Historical, Comparative, and Convergence Trifecta in International Water Law: A Mexico-U.S. Example". The abstract:

Charles O'Rear, All-American Canal
Carries Colorado River Water
Through Sand-Swept Area of the Imperial Valley

Doctrinal disconnects complicate adjudication of international water rights controversies. However, legal history and comparative law sources can fill gaps and build analogies to bridge differences in substantive law. Between Mexico and the United States in particular, the civil-common law divide at times appears vast, but has been occasionally narrowed by reference to shared Roman principles of usufruct or by incorporation of Mexican law into the U.S. system. This article argues that these commonalities can help solve the dispute over the All-American Canal in Southern California, which prior to being lined with concrete by the U.S. Bureau of Reclamation recharged groundwater supplying Mexican farmers and the endangered Colorado Delta ecosystem. Such meeting places for doctrine suggest that, even in domestic courts, nations need not attempt to resolve international problems through domestic law alone.

Customary rights and the environment in India

The latest issue of History Workshop Journal has Vinita Damodaran's latest entry into the debates over colonialism and the environment, "Indigenous Agency: Customary Rights and Tribal Protection in Eastern India, 1830–1930". Though the abstract (after the jump) makes it sound like the article deals extensively with post-independence India, in reality it focuses on the colonial period (as indicated by the title), crediting the British with making some genuine efforts to recognize customary property rights of indigenous peoples. Damodaran explains the stakes:

Pareshnath Hill (source: Wikipedia)

The current revisionist position in history and anthropology has focused on dismantling terms such as ‘tribe’, ‘forest’ and ‘indigenous’, used extensively in the past, and this has had a significant negative impact. As notions of ‘indigeneity’ and ‘customary rights’ come under revisionist attack the marginalization and proletarianization of forest-based communities and their traditional livelihoods gain pace all over the world. Recently however there has been a reassessment of the significance of customary law among tribal communities, in terms of access to resources and also of how people use it to claim citizenship. Parallels can be drawn between areas as far afield as England, Australia and Indonesia. As E. P. Thompson noted, in eighteenth-century Britain ‘custom’ was invoked to legitimate almost any usage, practice or demanded right. In a new collection, edited by Nandini Sundar and including work by sociologists, anthropologists and lawyers, the idea of custom as enshrined in colonial law makes a comeback. It is noted that while Indian courts are currently far from the judicial revolution heralded in Australia by the landmark Mabo judgement of 1992, they nevertheless recognize custom provided it is established as such by clear and unambiguous evidence. Whilst rightly challenging the static understandings of custom, Sundar points out that ‘custom deserves serious reconsideration as a discursive product of engagement between local communities and forging visions of the future in the name of the past and the spaces the state allows for pockets of exceptionalism’. It has also been argued recently that customary law may help to overcome the so-called ‘tragedy of the commons’ – the theory that open access to common property may lead to over-exploitation by self-interested individuals. Customary law systems in contrast are mostly concerned with (limited) common rather than public property. Historically grounded understandings of the conflict over customary rights and understanding customary law in the colonial context thus become crucially important.

Krier's environmental law scholarship

Carol Rose has posted "Evolution and Environment in the Property Scholarship of James Krier", a short piece exploring the connections between property theory and environmental law--a prominent theme in Rose's own influential work. The abstract:

This article is a brief appreciation of the enormous contributions that Jim Krier has made to property law scholarship. It focuses on his engagement with theories about the evolution of property rights, and argues that Krier learned from his work in environmental law to be skeptical about just-so theories of institutional evolution, including the evolution of property. Instead, Krier has been constantly attentive to the reasons why institutional responses to resource problems actually unfold as they do, following their twists and turns through both successes and mishaps.

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:

Aboriginals and Métis in Rupert's Land

July's Environmental History has a review by Neil S. Forkey of Civilizing the Wilderness: Culture and Nature in Pre-Confederation Canada and Rupert’s Land (U Alberta Press, 2012) by A.A. den Otter. The book apparently treats legal issues in at least one instance, as Forkey writes:

The strength of the collection lies in its highlighting of Aboriginals and the Métis as integral to the manifold changes of the period. Den Otter skillfully demonstrates that far from resisting some of the encroachments brought by contact with the Hudson’s Bay Company, which conducted a trade in furs, or with the burgeoning Canadian state, the Métis were willing (on their own terms) to embrace certain elements of progress. The best illustration of this is his reexamination of the 1849 (Pierre-Guillaume) Sayer Trial, in which four Métis traders were charged with breaching the HBC’s trade monopoly. The men were found guilty but released on the grounds of mercy. The over two hundred Métis encamped outside the court building erupted in cheers, in what den Otter concludes was vindication for those seeking access to more lucrative American markets so as to improve the quality of their lives. Free trade, an example of progress, was what the Métis wanted. 

The history of fishing law

We are happy to re-post a review by George Conk of W. Jeffrey Bolster's The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). (Fishing and the law is an old topic that seems to be a renewable resource--see, for example, Arthur McEvoy's classic The Fisherman's Problem: Ecology and Law in the California Fisheries, 1850-1980, and recent posts here and here.)

George is a Senior Fellow at Fordham Law School's Stein Center for Law & Ethics, who blogs at Otherwise, and fishes the Muscongus Bay, Gulf of Maine. He is currently researching oil spill compensation to fishermen in the Bohai Bay, China. The review:

The Tragedy of the Commons has been the dominant metaphor to depict the decline of the fisheries since Garrett Hardin’s classic 1968 article in Science magazine.  Hardin observes, for example, that “[t]he rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of `fouling our own nest’, so long as we behave only as independent, rational, free-enterprise” actors.  Hardin's metaphor of ineluctable catastrophe invokes moral deficiency to reject the invisible hand as a solution to the problem of scarcity, and a reason to decline to celebrate with abandon the contractarian libertarian vision.  Others like Yale legal historian Robert Ellickson in Order Without Law have observed that `neighbors’ could settle disputes by practices that create order without law - thus establishing law.  But such social groupings were incapable of ruling the seas, or even the rivers that lead to it.

Jewish law and the environment

We recently posted on John Nagle's discussion of Lynn White's influential "The Historical Roots of Our Ecologic Crisis", which blamed Christianity for modern environmental problems, and the critiques that have been leveled against it.

Jonathan Zasloff's recent post at Legal Planet, "A New/Old Jewish Environmental Ethic: Don’t Go About Like a Merchant", examines religion and the environment from a new and surprising angle, the relation of Jewish law's prohibition not to "go about like a merchant" (לא תלך רכיל) to environmental issues. Zasloff writes:

To the extent that the לא תלך רכיל injunction is about merchants, it opens up huge vistas to think about environmental ethics.  It most assuredly is not saying that being a merchant is bad; there are literally hundreds of laws, decisions, and ethical commands on the proper conduct of private business.  But instead, what it suggests is that one should not “walk around” or “go out” as a merchant; in other words, one should not apply the rules of private business to spheres where it does not apply.

It’s not hard to see where this is going.  Interpreting the injunction in this way would yield an approach to environmental policymaking that is cautious and conservative in allowing purely economic considerations to dominate the preference for rules.  It’s not bad to act like a merchant, but you shouldn’t walk around doing it.  There are a host of other ways to think about problems: justice, fairness, tradition, equality (not to mention humanity’s relationship with God).  Jamming everything into economic models or cost-benefit calculations violates the injunction.  Note, by the way, how much better the “merchant” interpretation goes with the immediate context: you don’t go about as a merchant because then you consider everyone as things to be added into a calculation, in other words, you would stand idly by the blood of your neighbor.

Constitution and environment in the graveyard of history

Where do constitutional history and environmental history meet? In cemeteries, it turns out.

(Environmental History)

Al Brophy recently posted "'These great and beautiful republics of the dead': Public Constitutionalism and the Antebellum Cemetery", in which he argues for the importance of cemeteries in American constitutional discourse. (This is not Brophy's first foray into environmental aspects of legal history; see his "Property and Progress: Antebellum Landscape Art and Property Law".)

Readers of Environmental History may remember Aaron Sachs's 2010 article, "American Arcadia: Mount Auburn Cemetery and the Nineteenth-Century Landscape Tradition", in which he explores the "flowering of a landscape tradition in the antebellum period that was characterized by a simultaneous engagement with mortality and with the immediate environmental context of ordinary life, by an ecological ethic based on humility, finitude, and integration". (See also Sachs's recently published Arcadian America: The Death and Life of an Environmental Tradition (Yale UP, 2013).)

Interestingly, both articles highlight Boston's Mount Auburn Cemetery (pictured here). Unfortunately, this seems to be yet another case where the disciplines of environmental history and legal history are talking past each other. Time for a dialogue!

Free mining in Quebec

Thetford Mines, nimonik.ca

The Canadian Legal History Blog recently noted the publication of Ugo Lapointe's "L’héritage du principe de free mining au Québec et au Canada" in the 2010 volume of Recherches amérindiennes au Québec. The English abstract:

This article portrays the origins and evolution of free mining regimes in Québec and in Canada, as well as the consequences of these mining regulations for people, communities, mining companies, and public authorities. The author argues that free mining regimes distort power relations which contribute to social and environmental conflicts. In conclusion, he proposes reviewing mining regulations based on the free mining regime and sketches out possible alternatives.

Digital archives on western water law

The William A. Wise Law Library at Colorado Law has two digital archives that should be useful to those interested in the history of western water law. The Arizona v. California Collection contains, as the site explains,

more than 160 full-text, searchable pleadings, briefs, orders, transcripts, and reports from the historic, 12-year original proceeding in the U.S. Supreme Court filed by the State of Arizona against the State of California, which sought to clarify rights to the use of Colorado River basin water. The case culminated in a June 3, 1963 decision, reported in Arizona v. California, 373 U.S. 546, which was implemented by a March 9, 1964 decree, reported in Arizona v. California, 376 U.S. 340.

This archive should be useful not only to those interested in the monumental case, the results of which continue to affect the American Southwest, but also in legal developments of the years preceding the case, such as the Colorado River Compact of 1922.

Property rights and deforestation

from the article

Zachary Liscow's recently published "Do Property Rights Promote Investment But Cause Deforestation? Quasi-Experimental Evidence from Nicaragua", an economics article, has deep resonance with both the environmental law and environmental history literatures. Many have argued that private property is a solution to environmental problems of the sort Garrett Hardin called "The Tragedy of the Commons". Others have blamed private property for environmental depredations of all sorts. Liscow weighs in with some empirical research, as the abstract explains:

Law and salmon fishing

The latest Environmental History includes a review by Ted Binnema of Lisa Wadewitz's The Nature of Borders: Salmon, Boundaries, and Bandits on the Salish Sea (U of Washington Press, 2012). Calling it an "impressive study", Binnema writes:

The most impressive chapters of this book are those focused on the late nineteenth and early twentieth centuries. With considerable nuance, they explore the many and complex legal and illegal ways that people involved in salmon fishing and canning exploited for their own benefit the different economic, political, and regulatory regimes on either side of the international border. That international dimension to the history lends the history of the Fraser River a fascinating distinctiveness. Although the border often facilitated people’s efforts to further their own interests, it also stymied efforts at salmon conservation. Wadewitz includes race, ethnicity, gender, and class in a study that may yet be most appropriately categorized as a borderlands environmental history. She includes the relatively powerless fishermen, cannery workers, and fish trap watchmen of aboriginal, Asian, and European extraction, the powerful and wealthy cannery owners, fish trap owners, and government officials who sought to control the industry, and the defiant fish bandits (who illegally caught fish in one country and sold in the other) and fish pirates (who stole salmon from fish traps). Those who would regulate and police the fishing and canning industries faced impediments and obstacles so large that they could not hope to accomplish their goals. Among the obstacles was the fact that the victims of illegal activity (poaching, banditry, piracy, and illegal migration across the border) were often also perpetrators, abettors, or beneficiaries. Poachers and fish pirates were perceived among at least some of the public as underdogs and Robin Hoods, “stealing” from the wealthiest cannery and fish trap owners, to the advantage of the little guy. However, in “saving” salmon from illegal harvest in one country’s waters, law enforcement officials might easily be perceived as allowing fish to cross the border where foreigners would benefit from the harvest. It is a complex world, indeed, that is revealed in The Nature of Borders.