Saturday, December 27, 2014

Yakama Indians and environmental-legal battles

A while back Legal History Blog posted on the publication of Barbara Leibhardt Wester's Land Divided by Law: The Yakama Indian Nation as Environmental History, 1840-1933 (Quid Pro Books, 2014). From the publisher:
Wester’s environmental history of Yakama and Euro-American cultural interactions during the 19th and early 20th century explores the role of law in both curtailing and promoting rights to subsistence resources within a market economy. Her study, using original source files, case histories, and contemporary writings, particularly describes how the struggle to assert treaty rights both sprang from and impacted the daily lives of the Yakama people.
The study is now widely available in this new paperback (and digital) edition, adding a 2014 foreword by Harry N. Scheiber, professor of law and history at Berkeley. This book, he writes, “is a masterful study of the complex, extended series of confrontations between the native Indian cultures of the Yakima region and the regime of the conquering white nation. Her analysis is based on a blending of materials from rich archival sources and from the literatures of legal history, administrative history, anthropology, ecology, and cultural theory. Most remarkably, the book makes important new contributions to all these fields of scholarship.”
“In her remarkable book Land Divided by Law, Barbara Leibhardt Wester eloquently portrays the Yakama Indians of the Columbia River Basin as actors defending a threatened, living landscape from encroachments by settlers. Using federal officials and the courts to advocate for their rights, they reasserted a spiritual heritage of the earth as body, heart, life, and breath. Anyone interested in Native peoples and their interactions with Euro-Americans will want to read this lively, engaging account.”
— Carolyn Merchant, Professor of Environmental History, University of California, Berkeley
“This is a remarkable work that brims with insight about the inter-relatedness of nature, work, law, and culture. Wester blends expertise in several different academic disciplines with a superb gift for narrative into her analysis of the Yakama people’s defense of their traditional way of life. The book is a testament not only to the skill and resilience of its subjects but also to the power of the author’s empathy and respect for them.”
— Arthur F. McEvoy, Associate Dean for Research, and Paul E. Treusch Professor of Law, Southwestern Law School

Friday, December 26, 2014

Drinking water regulation

Slate recently published a piece by James Salzman marking the 40th anniversary of the US Safe Drinking Water Act. Salzman writes:
Prior to the understanding of germ theory in the late 19th century and realization of the dangers bacteria posed, cholera and typhoid epidemics were commonplace and little-understood. The practice of chlorination, introduced to America by the water supplier for Jersey City in 1908, eradicated these threats within decades. Ironically, Jersey City actually sued the water company, arguing that the older system of sand filtration was needed to provide the pure and wholesome water required in the supply contract. The judge decided in favor of progress, finding for the company. The New York Times report of the decision was remarkably prescient about the importance of chlorination: “so successful has been this experiment that any municipal water plant, no matter how large, can be made as pure as mountain spring water.” Written a century ago, it almost reads like an ad for bottled water today.
The first standards for drinking water in America were developed by the Public Health Service in 1914, two years after the famed aviation brother Wilbur Wright died of typhoid. The federal standards addressed bacteriological threats, but the PHS’ powers were limited, so the standards applied only to interstate common carriers such as trains, buses, and ships. Water providers to these carriers had to use chlorination, and this soon covered all the major cities.
The PHS standards were neither comprehensive nor revised very often. Rachel Carson’s Silent Spring heightened the country’s consciousness about pesticides and chemicals, and advances in science revealed whole classes of dangerous viruses, but only 28 of these contaminants were covered when Carson’s book was published in 1962. And even where there were federal standards, there was scant implementation. By 1970, the PHS standards directly applied to just 650 out of the nation’s 35,000 public water suppliers. Only 14 states had adopted the standards for themselves. 

Thursday, December 18, 2014

CFPs: Occupation and Planning

Two announcements recently posted on H-Environment may be of interest to readers:

From the call for the 3rd Summer Institute at Cornell University (May 11-15, 2015), on the topic, “Occupation: Violence and the Long-term Control of Land and People”:
The theme of the Third Annual Summer Institute at Cornell University is military occupation and its civilian society relatives.
The goal of the Institute is to understand emergent meanings of occupation and recognize its paradigmatic potential for land and resource commandeering in episodes of war and peace. Participants will ponder these questions: How does military occupation insinuate itself into civilian governance after war episodes pass? How do models of military occupation inform (or not) non-military efforts to assert control over people and landscapes? How are subaltern occupations by the occupied similar to or divergent from military occupation? Other likely questions: How is military occupation changing in light of the changing nature of war? Does occupation ever improve conditions in subjugated zones (“transformative occupation”), an assumption informing today’s U.N. Peacekeepers and other humanitarian interveners? How do corporations occupy landscapes (patents, debt obligations, take-overs, accumulation by dispossession, land/sea grabs)? How is occupation different from enclosure, annexation, and colonial dominion? 
The application deadline is January 15. More at H-Environment.

from City of Philadelphia Zoning Maps (1933)
(Greater Philadelphia GeoHistory Network)
Also, the 16th national conference on planning history of the Society for American City and Regional Planning History (SACRPH) will take place in Los Angeles, November 5-8, 2015:
SACRPH cordially invites papers on all aspects of the history of urban, regional, and community planning, worldwide. Particularly welcome are papers or complete sessions addressing:
•    planning and the built environment in the U.S. Sunbelt
•    comparative and global studies of planning, especially of the U.S. West/Pacific Rim, or U.S. Southwest/Latin America
•    preservation planning in 20th-century cities
•    disaster and urban resiliency
•    the ethics of planning
•    planning and the law
Proposals are due February 15. More at the Society website.

Monday, December 15, 2014

In Memoriam: Gordon Bakken

We note the recent passing of historian Gordon Bakken (1943-2014). A leader in the fields of western American history and women's history, Bakken was also active at the intersection of legal and environmental history. Some publications:

    Man in cowboy hat
  • "American Mining Law and the Environment:  The Western Experience," 1 Western Legal History 211-36 (Summer/Fall, 1988)
  • "A Law for Water in the West: Irwin v. Phillips (1855)," pp. 314-15;  "The Hydraulic Society of the Colorado River: Arizona v. California (1963)," pp. 320-21 in John W. Johnson, ed. Historic U.S. Court Cases, 1690-1990 (Garland Publishing, 1992)
  • “An Inversion Layer in Western Legal History: Air Pollution in Butte, Montana," in Hendirk Hartog and William E. Nelson, eds., Law as Culture and Culture as Law (Madison House Publishers, 2000), pp. 264-91
  • "Water Pollution, Law, and the Collapse of Societies,” 17 Western Legal History (Summer/Fall 2004): 211-234
  • “Montana, Anaconda, and the Price of Pollution,” 69 The Historian (Spring 2007), 36-48
  • The Mining Law of 1872: Past, Politics, and Prospects (University of New Mexico Press, 2008)
  • “Mining and Pollution in the West: The Limits of Law Protecting the Environment". 21 Western Legal History (Summer/Fall 2008), pp. 209- 236
  •  “Colorado’s Impact on American Mining Law,” 49 Journal of the West (Spring 2010): 61-67

Saturday, December 13, 2014

250th post - some favorites

Today's post is the 250th on Environment, Law, and History!

Thanks to everyone who's written, comment, and encouraged. If you're interested in writing for the blog, or have any news or ideas that you think should be featured, please write me (dschorr[at]

Over the last year and a half we've covered a lot of interesting topics. Here are some of my favorite posts:

Sunday, December 7, 2014

Lynton Caldwell and NEPA

H-Net recently posted a review by Laura Gifford of Wendy Read Wertz's Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Indiana UP, 2014). Gifford writes:
As author Wendy Read Wertz rightly asserts, political scientist and environmental activist Lynton Keith Caldwell’s remarkable contributions to the development of the modern environmental movement have gone largely unrecognized—and this constitutes a grave omission. Based at Indiana University for most of his career, Caldwell, whose wide-ranging work over a long career in public administration, environmental studies, and environmental policy advocacy produced a bibliography of work some fifty-four pages in length (p. 398), has been referred to by many as the father of interdisciplinary environmental studies. Long before most, Caldwell understood that to craft effective environmental policy, policymakers must be trained to understand and appreciate the ecological world surrounding them. Public administration skills must be joined with scientific and even philosophical understanding of the planet as an integrated whole. Caldwell’s expertise in both public administration and environmental policy brought him into a position of international influence, and he traveled widely both to conduct training and to advocate for his systematic ecological vision. Domestically, his achievements include the creation of an interdisciplinary school of environmental studies at Indiana University and, perhaps most notable, a leading role in drafting the National Environmental Policy Act (NEPA) of 1969.
Wertz has given a signal service in providing the field with a resource through which we can learn about this remarkable scholar. Her coverage of the NEPA, often regarded as the “Magna Carta” of U.S. environmental policy, is deeply insightful—though..., depending on the audience, further editing could have been useful. The field of environmental policy is richer for this addition. Serious scholars of NEPA, Caldwell, or environmental studies will find this volume a wonderful resource. More casual readers should bear in mind that some skimming may be required. 

Friday, December 5, 2014

Environmental justice in India

Environmental Justice recently published Ravi Rajan's "A History of Environmental Justice in India". The abstract:
Indian environmentalism has, for the most part, been about social justice. During the 1970s and 1980s, it was concerned with differential access to natural assets and ecosystem services. The Bhopal Gas Disaster of 1984 raised new issues, pertaining to industrial risk and safety. This article traces the history of environmental justice from the 1970s onward. It describes the perspective of Indira Gandhi, India's Prime Minister from 1967 to 1984, and her attempts at reconciling the environment with development and economic justice; discusses the emergence of a red-green environmentalism during the 1980s and 90s; and explores Bhopal and its implications; before addressing the issues that are front and center today, in the early twenty-first century.
The article has some trenchant quotes from Indira Gandhi's speech, "Man and Environment", at the United Nations Conference on Human Environment at Stockholm in 1972. Here's one:
The extreme forms in which questions of population or environmental pollution are posed, obscure the total view of political, economic and social situations…It is an over-simplification to blame all the world's problems on increasing population. Countries with but a small fraction of the world population consume the bulk of the world's production of minerals, fossil fuels and so on. Thus we see that when it comes to the depletion of natural resources and environmental pollution, the increase of one inhabitant in an affluent country, at his level of living, is equivalent to an increase of many Asian, Africans or Latin Americans at their current material levels of living…All the “isms” of the modern age—even those which in theory disown the private profit principle—assume that man's cardinal interest is acquisition. The profit motive, individual or collectives, seems to overshadow all else. This overriding concern with self and today is the basic cause of the ecological crisis.
Rajan writes:
Indira Gandhi's Stockholm speech was not just a one-off rhetorical flourish in an international forum. It also came to signify the codification of India's approach to development in the second half of the twentieth century. The essence of this approach was that India would strive to harness its natural resources, and invest in modern technology to raise the quality of economic life of the average person. At the same time, efforts would also be made to conserve the environment and preserve its vital forces. Indira Gandhi recognized that there were many shades of gray, and that this grand strategy was easier to talk about rhetorically than implement in practice. For example, she grappled with the consequences of development upon India's tribal peoples and their cultures, only to reconcile the inevitability of development. Again, despite her vehement critique of Western population control advocates, she ended up presiding over an extremely coercive, government-sponsored, forced sterilization program. She lamented the increasing monocultures that resulted with the pursuit of industrial forestry by the government's own forest department but appeared frustrated that her own government did not heed her concerns. In many speeches she repeated the argument in Stockholm that Western industrialism was not a paradigm for countries like India; and articulated the need for balance and alternatives, including, for example, appropriate technology and renewable energy. Yet, she offered no concrete alternatives or pathways for environmental governance.

Thursday, December 4, 2014

At the birth of the Clean Water and Clean Air Acts

Jeff Thaler recently posted "At the Birth of the Clean Water and Clean Air Acts" at Environmental Law Prof Blog. From the post:
2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.
Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 
Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,”  grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted.  Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.”  For that reason, he deliberately included the open-ended phrase “selected air pollution agents.” And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Sunday, November 30, 2014

Pontin on environmental law-making in Victorian Britain

We recently had the pleasure of hosting Ben Pontin at the Law and Environment Workshop at TAU. Ben presented some of his fascinating, ongoing research on what he terms "the first green industrial revolution", the wave of environmental law-making (both judicial and legislative) that swept Victorian Britain.

Ben's presentation on his book project on the influence on environmental law of Britain's landowning class and its struggle with capitalist industrialists was fascinating. Hopefully we'll hear more about this work, complementing recent work on middle- and working-class environmentalism, soon.

A recent article of Ben's, "Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham’s and Coleridge’s Ideas", published in the Oxford Journal of Legal Studies, sets out some of the intellectual and cultural background, as explained in the abstract:
James Northcote, Portrait of Samuel Taylor Coleridge (1804)
It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning (being instead a piecemeal reaction to the various problems of industrialization as and when these presented themselves). The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped laws as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ (or ‘individualism’) which in turn ceded dominance to ‘collectivism’ (also influenced by Bentham’s ideas). Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law.

Sunday, November 23, 2014

Competing heritages in international environmental law

I recently came across "Theorising International Environmental Law", by Stephen Humphreys and Yoriko Otomo. The abstract:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
Caspar David Friedrich,
The Wanderer above the Mists (1817-18)
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

Sunday, November 16, 2014

The history of capitalism, growth, and environmental limits

The Nov. 24 issue of The Nation has a very interesting, extended review by Timothy Shenk of a number of recent books on the history of capitalism. Given that environmental history is now intensively engaged with the topic of capitalism, that legal historians are also part of the new school, and that the emerging history of environmental law gives a prominent place to the industrial revolution and capitalism, I think this is a central topic for readers of this blog. Shenk writes:
Mostly young, and mostly specializing in the history of the United States, historians of capitalism are one part of a broader revival in political economy. Yet the success enjoyed by this segment of a larger groundswell remains noteworthy—and surprising. Despite the seeming predictability of the subject’s popularity at a time when economic issues have moved to the forefront of public debate, turning capitalism into the central category of historical analysis requires intellectual sacrifices, pushing some topics into the spotlight and relegating others to the shadows. This has not escaped the capitalism cohort’s peers, many of whom fear that the trend would undo advances made by a generation of cultural historians, while leading to even more scholarship of and by white men. Historians of capitalism vigorously protest those charges, but murmurs of discontent have already begun, and they will grow louder if the field continues to thrive.
Shenk is critical of the new trend's focus on economic growth as a corollary of capitalism:

“The First Cotton Gin,” Harper’s Weekly, Dec. 18, 1869
...the new historians of capitalism have a... complicated relationship with economists.... This is nowhere more evident than in the routine conflation of economic growth with capitalism. Though far from the only subject addressed by these historians, economic growth serves a crucial purpose in their accounts, in which capitalism’s ability to satisfy the yearning for more becomes its trump card. An incentive that has stymied would-be revolutionaries for centuries, economic growth unites communities around the pursuit of mutual enrichment, promises social mobility and political stability, and excuses every sacrifice made in its name. Despite its contemporary ubiquity, however, the idea that economic growth is a necessary feature of collective life has a brief history—much briefer than the history of economic growth itself. Not until the middle of the twentieth century was economic growth accepted as a natural and obviously attractive feature of a modern economy, and even then its reign soon came under assault.
Today, confronting the twin pressures of mounting income inequality and escalating concerns about climate change, partisans of economic growth face stronger opposition than at any time in decades. Even if continued growth were desirable, an increasing number of economists are convinced that a decrease from the last century’s norm will be unavoidable in the century ahead. It is a strange tableau: while economists speculate on growth’s decline, a swath of the historical profession, eager to challenge the tyranny of economists, has attempted to make modernity into the story of economic growth—a story that the economists of a prior generation did more than any other group to canonize. Understanding how we arrived at this intellectual crossroads requires a history of its own. 

Friday, November 14, 2014

Nuisance injunctions

The Journal of Environmental Law has a review by Patrick Bishop of Ben Pontin's Nuisance and Environmental Protection - A Study of Nuisance Injunctions in Practice (Lawtext, 2013) (Ben blogged here about the book and his related work last summer.) Bishop writes:
This book’s aim is succinctly stated from the outset, namely to examine: ‘what nuisance law is with reference to what it does in practice, in circumstances where a claimant is awarded an injunction to restrain ongoing pollution’ (p 1). Pontin posits various nomenclatures to describe his methodology, ‘realist’, ‘law-in-action’ or ‘law-in-context’ (p 3), but in essence the approach adopted is contextual.... The intention is to elucidate the socio-economic and environmental impact of nuisance injunctions by the study of materials extraneous to the law reports; in summary this book intends to broaden and enhance our understanding of nuisance by considering ‘what happened next’.
...the introduction provides a discussion of the main theories relating to the effect of the grant of an injunction. The author identifies four hypotheses gleaned from the literature. First, the idea that the grant of an injunction is likely to result in the closure of the defendant’s polluting exercise (the closure theory). Secondly, it will simulate thinking and investment into new modes of business in a manner which eliminates or at least reduces pollution to acceptable (non-actionable) levels (the clean-up theory). Thirdly, there is the possibility that an injunction might force the defendant to relocate its place of business to an alternative area where the nature of the locality is such that the polluting activity would not constitute an actionable nuisance (relocation theory). Finally, the parties might enter into a post injunction bargain, whereby the claimant is paid to move on or waive their legal rights as suggested by Ronald Coase in his ground-breaking work, ‘The Problem of Social Cost’, (Coase theorem). Thus, while it is Pontin’s intention to produce a text of practical significance, useful to potential litigants as well as lawyers and academics, the discussion of each of the four cases is grounded in theory and the outcome of each case study is judged against the four hypotheses identified. 
Across the cases, the emphasis of the contextual discussion varies considerably; the chapter discussing Attorney General v Birmingham Corporation (1858–1895) focuses on the life and career of the claimant, Sir Charles Adderley. While he has faded into relative obscurity, Adderley is described by Pontin as a figure comparable to Rachel Carson and Gro Harlem Brundtland for his contribution to the enactment of the Public Health Act 1875 (p 59). In contrast, the claimant in Halsey v Esso Petroleum Ltd (1961–1972) is given scant attention and instead the background discussion is concentrated on national economic policy. The focus of each chapter is presumably shaped by the available archival material: it is safe to assume that the life of a former parliamentarian and cabinet minister (Adderley) has been recorded in considerably more depth than that of a Fulham van driver (Halsey). Regardless of the differing emphasis of each chapter, the contextual discussion is fascinating and more importantly, it is always enlightening.
The conclusion to each case study returns to the four hypotheses identified in the introduction. Of these, only the closure theory is discredited; the post-injunction investigation reveals that in none of the four cases was the defendant forced out of business. There is evidence, to a greater or lesser extent, to support the clean-up theory (Birmingham and Halsey), the relocation theory (Tipping v St Helens Smelting Co Ltd (1863-1884) and eventually Halsey) and in Farnworth v Manchester Corporation (1928–1930), the parties entered into a Coasian bargain, albeit that an agreement was reached after 40 years of negotiation! Significantly, in each case the injunction was suspended, thereby providing the defendant with the necessary time to find an alternative to outright closure. As Pontin notes: ‘The costs to industry were bearable, and indeed in each case the defendant had a choice as to compliance. Thus, the law afforded them a measure of flexibility’ (p 167). 

Sunday, November 9, 2014

After the Grizzly

The recent issue of American Historical Review has a review by Kevin Armitage of Peter Alagona's After the Grizzly: Endangered Species and the Politics of Place in California (University of California Press, 2013) (we covered an earlier review here). Armitage writes:
The book argues that the ESA ensnared developers and environmentalists in familiar standoffs, and that battles over endangered species drove new law, science, and land-use policy. From these conflicts emerged the concept of “protected natural areas,” one of the dominant tools for species management, but one that Alagona thoroughly questions. Alagona notes how habitat protection alone cannot account for diseases, invasive species, the complexities of species interaction, and even how historic land-use patterns may or may not provide species habitat. This superb volume is an excellent history of California wildlife and shows how environmental history can prompt a fundamental reevaluation of public policy and scientific debates.
After the Grizzly is not an exhaustive history of wildlife in California, providing, instead, detailed case studies of four species—not the eponymous grizzly, but the California condor, the Mojave Desert tortoise, the San Joaquin kit fox, and the delta smelt—to exemplify the science and politics of wildlife conservation. Grizzlies, however, remain an important part of Alagona's story. Extinct in California for most of the twentieth century, grizzlies still haunt the state. They are emblematically abundant, a symbol of statehood, a creature at once adopted and eradicated. But the fate of this species does not fit into a simple morality tale of environmental decline. The grizzly, as well as the other species Alagona discusses, came to embody debates that are as much about “the politics of place as about wild animals” (p. 41). The politics of endangered species thus became the politics of endangered habitats, which in turn helped elevate the concept of habitat in legal doctrine and ecological science.

Friday, November 7, 2014

Mono Lake at 20

A favorite of environmentalists, environmental law professors, and students is the California Supreme Court's 1983 decision in the Mono Lake Case, applying the public trust doctrine in a particularly emphatic way on the side of ecological values. Anyone who's read the case knows that the court didn't apply the trust in a strong, "property" sort of way, but rather sent the issue back to the administrative agency to reconsider diversions from the lake, giving due weight to the values protected by the trust. So what actually happened afterwards?

On November 17 Berkeley Law will be holding a symposium on the issue, "Mono Lake at 20: Past, Present and Future". Note that the "20" is not since the famous court decision, but the 20th anniversary of the ensuing State Water Resources Control Board’s Decision 1631. Michael Kiparsky explains at Legal Planet:
In 1983 the California Supreme Court directed the SWRCB to amend Los Angeles Department of Water and Power’s water rights to protect Mono Lake and its tributary creeks. In 1994, the SWRCB issued Decision 1631, its landmark decision in the Mono Lake Cases. The decision was the first in the state’s history to integrate the Water Code, Fish and Game Code, and the common law of public trust, to achieve such a result.
The symposium will address a number of fundamental questions. What are the actual results of implementation of D-1631? What does the decision mean for other water rights, as the State Water Board seeks to determine how best to protect public trust uses of the Delta and Central Valley rivers....
This effort will extend the academic symposia at UC Davis in 1980 and 2011 in several intentional ways. Building on the doctrinal syntheses of the Public Trust Doctrine developed by the scholars at UC Davis, we will seek to move from problem definition towards solutions statements. The symposium will do so by bringing together panelists from multiple perspectives to distill lessons learned from twenty years of concerted effort, placing them in the context of institutional, fiscal, and ecological realities.

Thursday, October 30, 2014

Environmental law in India

Saumya Umashankar has posted "Evolution of Environmental Policy and Law in India". The abstract:
The paper examines the evolution of environmental policy and law in India and the dominant influences that defined the course of policy. It identifies four distinct phases – the colonial and immediate post-colonial phase, the second phase commencing from the UN Conference on Human Environment in 1972, the Bhopal Gas leak disaster marking the milestone for the third phase and judicial activism extending over two decades as the fourth phase. In the initial colonial and post-colonial phase, environment policy was centered around State rights over forests and usage of forest produce. The dominant themes were revenue accretion and usage of forest products to fulfill development needs specifically in the spread of the railways and communication network. The post-colonial phase immediately after Independence in 1947 did not see a significant shift from the colonial period. The UN Conference on Human Environment in 1972 marked a significant milestone that changed the course of environment policy forever. The presence and participation of the Prime Minister of India in the Conference deliberations brought an immediate response in Government’s focus towards conservation actions. The period from 1972 to 1980 saw a large number of legislations being enacted. The Bhopal Gas Leak Disaster was a defining movement in India’s environmental history. The inadequacy of the governance structure in prevention of the disaster, the inability of legal and administrative processes to deliver adequate compensation to the affected people and stirring of public consciousness about the threats posed by environmental negligence came together to reshape environmental policy. A chemical leak incident in the national capital shortly after the Bhopal disaster and the death of a practicing advocate in the incident became the trigger for judicial involvement in environmental matters. The source of policy developments in environment decisively shifted from an elected political executive to an unelected judiciary. International debates on climate change in recent years and commitments to abatement measures appeared only at the fringes of policy discussions. The paper narrates the progression of environment policy and law in India in each of these phases.
Mining in Goa (Sugandh Juneja)

Saturday, October 18, 2014

In Memoriam: Frank Grad

Columbia Law School notes the recent passing of Professor Emeritus Frank Grad. Some excerpts from the press release:
Born in Austria in 1924, Grad immigrated to the United States in 1939 to escape Nazism. He and his sister left Austria on the Kindertransport, and Grad lived with a family in England before coming to the U.S. 
In 1959, Grad was given the task of revising the New York City Health Code, including provisions relating to water pollution and its prevention, control of sewage fallouts, and the control of toxic substances and poisons. The code also included numerous provisions relating to the protection of food and water supplies against contamination by pollutants.
In 1969, Grad became director of the Legislative Drafting Research Fund and a full-time faculty member. He chose to take on classes in an emerging area in which his expertise would prove invaluable: environmental law. Grad was the first to teach the subject at Columbia Law School and, when he couldn’t find any materials to teach with, he wrote one of the earliest books on the subject. 
“Frank Grad was one of the true pioneers in the study and teaching of environmental law,” said Michael B. Gerrard, the Andrew Sabin Professor of Professional Practice and director of the Law School’s Sabin Center for Climate Change Law. “The field's seminal year was 1970 (when President Nixon created the EPA and signed the first major laws of the modern era), and Frank was out of the box with one of the first casebooks in 1971, and then one of the first treatises in 1973.  He trained generations of environmental lawyers.”
Grad updated his eight-volume Treatise on Environmental Law twice a year.
According to a December 20, 1969, article in The New York Times, “Environmental Law is Attracting Students,” 69 students applied to be in Grad’s 18-seat first course. “The school, in an unusual relaxation of its rules, will permit 30 students to take the course,” the Times wrote.

Tuesday, October 14, 2014

Stone Age environmental law

Environmentalists are sometimes accused of wanting to return to the Stone Age. Here's a fascinating, recently posted article--Ryan Soa's "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene"--that argues that the problem with modern American environmental law is precisely that it neglects the coping strategies of hunter-gatherer societies in favor of patterns of behavior adopted in the wake of the neolithic revolution. From the article's conclusion:
Hundreds of thousands of years of hunter-gatherers survived, and in some ways evolved as a result of, extreme droughts, floods, and wildfires. They did so despite extraordinary ecological changes they could not dream of controlling, adapting themselves to the new realities of their environment. Some approaches worked, and inevitably some did not. But a hominid record that stretches millions of years reveals a model for resilience to extreme natural events like droughts, floods, and wildfires. First and foremost, they were mobile. For some hunter-gatherer societies this meant the entire community migrated to a more favorable environment; for others, the relocations were temporary. Whatever the extent, societies that prioritized mobility were successful in removing people and assets from harm’s way. Second, their approaches were diversified. Societies were adept at recognizing and exploiting many potential food sources and ecosystem services. Mobility and diversification, in turn, were made possible by a sophisticated awareness of the surrounding environment. Ecological changes and opportunities were recognized and effectively integrated into community decision-making processes. These characteristics of the Paleolithic hunter-gatherer – mobility, diversification, and awareness – allowed societies to survive for thousands if not millions of years. 
Neolithic tools
The Neolithic Revolution brought a fundamental shift to the human lifestyle. Agricultural systems require settlement and management of a static area. When a drought, flood, or wildfire strikes the region, escape to more favorable conditions is not possible. The vulnerabilities of this approach are exacerbated by reliance on one or a limited number of short-sighted resilience strategies, such as cutting down a forest or building a dam. What mitigation options remain are not capitalized on due to a low level of awareness of the surrounding environment and its feedbacks, or an inability to effectively translate awareness into meaningful policy change. These characteristics of vulnerable civilizations are apparent in the legal frameworks of the United States. The totality of drought, flood, and wildfire laws and policies conform to three basic approaches: 1) controlling nature; 2) spreading risk across society; and 3) providing ex-post disaster relief. The first approach utilizes impressive feats of human engineering and ingenuity, but inadequately considers the consequences of modifying natural systems. Relying on infrastructure is equally problematic because built structures are prone to deteriorate and fail.Spreading risks across society by subsidizing insurance premiums for people and property in high-risk areas is compassionate and may promote other policy interests, but for purposes of building resilience to extreme natural events is not productive, and may in fact be counterproductive. The current trend of distributing generous disaster relief packages to affected communities is similarly compassionate but ineffectual in building resilience. Taken together the paradigm of disaster law in the United States boils down to strategies that control nature or, should that fail, reactively soften the blow.
...It is unlikely that the highly populated agricultural societies of the Anthropocene will return to a nomadic hunting and gathering lifestyle. Nonetheless, millions of years of human evolution and adaptation to droughts, floods, and wildfires tells a success story that has long been overlooked. For the sake of our collective resilience to extreme events, we would be wise to take another look. Despite the contrast in lifestyles, droughts, floods, and wildfires have been a constant feature of humans in their environment. The resilience model of the past provides a paleo perspective on contemporary legal frameworks, and can helpfully inform the future.

Monday, October 13, 2014

More on the Wilderness Act

Actually, more from Environmental Law's special issue on the Wilderness Act: John Leshy has posted "Legal Wilderness: Its Past and Some Speculations on Its Future". The abstract:
This Article considers the past and possible future of the effort to provide legal protection for tracts of federal lands under the umbrella of the Wilderness Act of 1964. Because legal protection comes through the political process, the task requires examining the politics of wilderness. Therefore, the Article spends considerable time looking at the political forces that led up to enactment of the Wilderness Act of 1964, and have shaped its implementation in the half-century that has followed. It explores the political compromises contained in the Wilderness Act, and how these have worked out in practice. It discusses how the legal meaning of wilderness has been shaped since enactment, and how successful the idea of legally protecting wild values has been. It also puts the Wilderness Act in the broader context of changes in federal land management policy since 1964. For example, whereas in 1964 wilderness designation was just about the only reasonably secure way to protect land from road building and other forms of intensive development, today many legal tools are available to accomplish it. Finally, the Article discusses current and likely future challenges to wilderness protection, some but not all of which stem from a destabilizing climate. The cumulative effect of these and other factors identified in the paper has already slowed down expansion of the National Wilderness Preservation System, and will likely continue to do so. Nevertheless, the System stands as a monumental achievement, expressing some of the more high-minded objectives of American political culture.
Eagle Cap Wilderness, Oregon (Lake Wallpapers)

Sunday, October 12, 2014

Environmental-policy-relevant history

I suspect we'll be hearing a lot in the coming months about The History Manifesto by David Armitage and Jo Guldi (Cambridge UP, forthcoming, available already for free on line). In the meantime Armitage gives us a preview in The Guardian, including this on history and current environmental policy (links added):
Debates on climate change also reflect the advantages and the limitations of historical perspective. On the one hand, Barack Obama’s former undersecretary for science in the US energy department, Steven Koonin, has recently argued for humility about future policy because we lack long-run data about the role of the oceans in climate change: “Precise, comprehensive observations of the oceans are available only for the past few decades.” On the other, historical economist Anil Markandya has shown that environmental regulation in 19th-century Britain did not have “any serious impact on GDP per capita”, overturning the orthodoxy that there is a necessary trade-off between growth and environmental protection. Meanwhile, French historians Sabine Barles and Gilles Billen have examined Paris’s “nitrogen footprint” to show how urban managers there invented sustainable practices for recycling waste in large cities: these are precedents relevant to practice and policy today.

UK sulfur emissions/capita, real GDP/capita, selected air pollution regulations
(Markandya et al, Envtl & Resource Econ (2006) 35: 221-257)

Saturday, October 11, 2014

The American Right and environmental politics

The latest American Historical Review has a review by James Morton Turner of Brian Allen Drake's Loving Nature, Fearing the State: Environmentalism and Antigovernment Politics before Reagan (U. Washington Press, 2013). Turner writes:
Two contributions distinguish this book. First, it considers how conservatives of many stripes—from traditionalists to libertarians—both reacted and contributed to environmental discourse in the 1960s, 1970s, and 1980s. Second, in asking these questions, it accomplishes something that few other histories of modern environmentalism have: it considers how environmental reformers have engaged fundamental questions of American political philosophy, such as “ideas about the individual, government, and the proper relationship between the two.” As Drake explains, these are “classic questions of American political philosophy” (p. 7).
In considering these issues, Drake offers fascinating rereadings of a familiar cast of characters, from Henry David Thoreau to Ronald Reagan. But the book focuses on four well-researched and compellingly narrated case studies: Barry Goldwater's deep love of the western wild lands and his punctuated political support for environmental reform; Edward Abbey's libertarian commitment to wilderness as a necessary refuge from the modern state and capitalist economy; conservative anti-fluoridation activists' opposition to the role of the state in polluting people's bodies in the name of public health; and a free-market approach to environmental reform grounded in the market, property rights, and tort law spearheaded by groups such as the Property and Environment Resource Center. What the protagonists in all of these case studies shared were suspicions of the role of the state in public life and an abiding concern for the environment and the natural world.
It is those concerns that defined Barry Goldwater's conflicted engagement with modern environmentalism. Drake explains how the standard-bearer of 1960s conservatism got his political start as an outdoorsman and nature photographer, traveling Arizona to share his passion for the Colorado River and the state's wild landscapes. Although Goldwater supported federal reclamation projects and opposed the Wilderness Act in the 1960s, Drake carefully tracks Goldwater's growing concerns for the environment in the 1970s, including issues such as pollution, overpopulation, and ecological decline. Despite Goldwater's commitment to the market economy and respect for individual liberty, Drake explains how he embraced federal environmental regulations in the early 1970s, as Goldwater emerged as a champion, although more often in words than deed, of pollution measures and wilderness protection. Goldwater could never fully reconcile his concerns for the environment and other political and economic imperatives, however. In Drake's analysis, it was for that reason that he had much in common not only with other conservatives, but also with many Americans, who often seemed conflicted over their environmental worries.

Friday, October 10, 2014

Smoke regulation in Baltimore

Pratt Street Power Plant today (G. Edward Johnson)
As a former Marylander who spent a lot of time in Baltimore, I was particularly interested when Legal History Blog recently noted the publication of Ann-Marie Szymanski's "Regulatory Transformations in a Changing City: The Anti-Smoke Movement in Baltimore, 1895–1931" in The Journal of the Gilded Age and Progressive Era. The article enters a longstanding discussion of the circumstances of the development of local environmental regulation against a common-law background, foregrounding as well dimensions of gender and class. The conclusion:
In many ways, the long road to administrative smoke regulation in Baltimore followed the path laid out by anti-smoke reformers elsewhere, albeit in fits and starts. In cities across the United States, amateur activists initially relied on the existing common-law approach to regulating nuisances, a strategy that, at best, only allowed them to shut down isolated polluters. However, when various judges and health boards proved reluctant to declare smoke to be an actionable nuisance, smoke opponents organized campaigns during the 1890s to secure smoke abatement ordinances that declared smoke a nuisance by definition. After the courts nullified several such ordinances on the grounds that only states could define nuisances, anti-smoke activists turned their attention to state legislatures, which increasingly empowered municipalities to regulate smoke after 1900. With this enabling legislation in hand, cities typically went beyond the nuisance approach. Municipal officials no longer merely responded to complaints, but became proactive. For example, they often required businesses to secure building permits for all new construction and repairs to boilers and furnaces. They also created more sophisticated solutions to the smoke problem. Whereas the common-law approach provided three basic responses to any regulatory conflict (injunctions, abatement and the payment of damages), the new anti-smoke regime proposed a variety of technical solutions, including the installation of smoke-control equipment. Of course, this reliance on technical solutions empowered those who were presumably best able to design them, namely, engineers.
Some scholars have been critical of the triumph of experts in early environmental regulation. Indeed, as the Baltimore case confirms, engineers who served as smoke inspectors often sought accommodation, cooperation, and gradual smoke reduction. David Stradling, for one, argues that such a conciliatory approach blunted the movement's impact on urban pollution; likewise, he holds that women's “arguments concerning health, beauty, cleanliness, and morality gradually lost ground to engineering concerns” and the narrower quest for efficiency. Frank Uekoetter disagrees with these conclusions, noting that even after engineers became leaders in the movement, some public officials continued to prosecute those who violated anti-smoke ordinances and ignored the inspectors' technical advice. Moreover, he finds that both women and engineers emphasized technological as well as aesthetic and moral aspects of the smoke problem, suggesting that there was no rigidly gender-specific approach to the smoke issue.
This study suggests that some female anti-smoke activists were deferential to experts without ceding the entire sphere of action to them.

Wednesday, October 8, 2014

Carbon debt

Thanks to Environmental History Resources we learned of a new contribution to the fraught topic of responsibility for historic carbon emissions. "Counting carbon: historic emissions from fossil fuels, long-run measures of sustainable development and carbon debt", by Jan Kunnasa, Eoin McLaughlin, Nick Hanley, David Greasley, Les Oxley & Paul Warde, was published in the Scandinavian Economic History Review. The abstract:
This article examines how to account for the welfare effects of carbon dioxide emissions, using the historical experiences of Britain and the USA from the onset of the industrial revolution to the present. While a single country might isolate itself from the detrimental effects of global warming in the short run, in the long all countries are unable to free ride. Thus, we support the use of a single global price for carbon dioxide emissions. The calculated price should decrease as we move back in time to take into account that carbon dioxide is a stock pollutant, and that one unit added to the present large stock is likely to cause more damage than a unit emitted under the lower concentration levels in the past. We incorporate the annual costs of British and US carbon emissions into genuine savings, and calculate the accumulated costs of their carbon dioxide emissions. Enlarging the scope and calculating the cumulative cost of carbon dioxide from the four largest emitters gives new insights into the question of who is responsible for climate change.
Sir James Dyer in his lawyer's cap
(Encyclopædia Britannica)
This is an ambitious effort, combining the skills of economists and historians. But putting on my lawyer's cap, I wonder if the assumption that "the calculated price should decrease as we move back in time to take into account that carbon dioxide is a stock pollutant, and that one unit added to the present large stock is likely to cause more damage than a unit emitted under the lower concentration levels in the past" is a valid one. In varied contexts from mass torts to common property, the law tends to apportion costs according to the proportional contribution to the problem or benefit from the activity, regardless of whose contribution caused more marginal damage due to timing.

That seems right to me from a distributive justice perspective, as well as from one focused on fault: The final unit of pollution, causing the most damage, would not have caused that much damage were it not for the first unit contributing to the stock of pollution. Think of the following example: Poisoner 1 slips half a dose of poison, in this amount completely harmless, into a victim's drink. Then Poisoner 2 slips another half dose. Would we say that only Poisoner 2 is responsible because only his action resulted in any marginal social cost?

Sunday, October 5, 2014

The Most Ambitious Environmental Lawsuit Ever

That's the title of a piece by Nathaniel Rich in the New York Times Magazine. Rich writes:
As the Mississippi shifted its course over the millenniums, spraying like a loose garden hose, it deposited sand and silt in a wide arc. This sediment first settled into marsh and later thickened into solid land. But what took 7,000 years to create has been nearly destroyed in the last 85. Dams built on the tributaries of the Mississippi, as far north as Montana, have reduced the sediment load by half. Levees penned the river in place, preventing the floods that are necessary to disperse sediment across the delta. The dredging of two major shipping routes, the Mississippi River Gulf Outlet and the Gulf Intracoastal Waterway, invited saltwater into the wetlands’ atrophied heart.
Beneath the surface, the oil and gas industry has carved more than 50,000 wells since the 1920s, creating pockets of air in the marsh that accelerate the land’s subsidence. The industry has also incised 10,000 linear miles of pipelines, which connect the wells to processing facilities; and canals, which allow ships to enter the marsh from the sea. Over time, as seawater eats away at the roots of the adjacent marsh, the canals expand. By its own estimate, the oil and gas industry concedes that it has caused 36 percent of all wetlands loss in southeastern Louisiana. (The Interior Department has placed the industry’s liability as low as 15 percent and as high as 59 percent....)
The oil and gas industry has extracted about $470 billion in natural resources from the state in the last two decades, with the tacit blessing of the federal and state governments and without significant opposition from environmental groups. Oil and gas is, after all, Louisiana’s leading industry, responsible for around a billion dollars in annual tax revenue. Last year, industry executives had reason to be surprised, then, when they were asked to pay damages. The request came in the form of the most ambitious, wide-ranging environmental lawsuit in the history of the United States. And it was served by the most unlikely of antagonists, a former college-football coach, competitive weight lifter and author of dense, intellectually robust 500-page books of American history: John M. Barry.
The article goes on to detail the dramatic background to the lawsuit, constitutionally questionable political efforts to kill it in the Louisiana legislature, and Barry's place in all this. Worth a read.

Friday, October 3, 2014

Early environmental justice

Legal Planet's Jonathan Zasloff recently noted the publication of Josiah Rector's "Environmental Justice at Work: The UAW, the War on Cancer, and the Right to Equal Protection from Toxic Hazards in Postwar America" in the Journal of American History. The article greatly enriches our knowledge of the history of the environmental justice movement; indeed, of the history of environmental law as a whole. Rector writes:
Despite the amplitude of the literature, occupational health historians have devoted surprisingly little attention to the relationship between health and safety activism and the post–World War II civil rights and feminist movements, or the role of health and safety activism in the rise of the environmental justice movement.
Ford's River Rouge Plant (1931)
Meanwhile, the nascent historiography of the environmental justice movement, largely written by social scientists, has tended to ignore labor's contributions, with the important exception of the United Farm Workers 1968–1971 campaigns against pesticide exposure. Most books about environmental justice, including many brilliant and formidable works of scholarship, present a brief, potted history of the movement, beginning with the struggle over polychlorinated biphenyl (PCB) dumping in Warren County, North Carolina, in 1982. Scholars of the topic have neglected the fact that as early as 1970 occupational health and safety activists used the term environmental justice to refer to the right to protection from toxic hazards codified by the Occupational Safety and Health Act (OSH Act) and the National Environmental Policy Act (NEPA). Few scholars, moreover, have noted that the UAW's 1976 Working for Environmental and Economic Justice and Jobs National Action Conference in Black Lake, Michigan, helped popularize environmental justice. This elision is ironic, since the disproportionate exposure of workers and people of color to toxic hazards was a major theme of the conference—one of the first to gather civil rights, feminist, labor, and environmental activists for sustained dialogue.
Rector's article focuses on occupational cancer in American auto plants as a case study. I hope we'll continue to see more work by him and others (see for example recent articles by Gregory Alexander and Stefania Barca) on working class environmentalism and environmental law.

Tuesday, September 30, 2014

Reversing the past

This is another one of those mind-bending posts in which the past and future are all mixed up. Alejandro Camacho recently posted "Going the Way of the Dodo: De-Extinction, Dualisms, and Reframing Conservation". It involves the possible future "de-extinction" (i.e. revival) of currently (or future) extinct species, and while it doesn't deal with history strictly speaking, it does raise the question of reversing history, as well as complicate the idea of the "natural" in a way familiar to environmental historians. The abstract:
De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises much more fundamental questions about the relationship between humans and nature, and the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on understandings of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.
Through the example of de-extinction, this article illustrates the limitations of the law’s reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity’s indivisibility from it.


Sunday, September 28, 2014

Holy property and the Prussian forest

More on conflicts over property rights in German forests: February's Environment and History had an article by Jeffrey Wilson, "'The holy property of the entirety of the people': The Struggle for the 'German Forest' in Prussia, 1871-1914". The abstract:

Wilhelm Heinrich Riehl (1823-1897),
 demanded the preservation of
public access to the ‘German forest’
During the nineteenth century, German intellectuals articulated the notion that the nation's identity and social peace were rooted in public access to its forests. In the late nineteenth century, however, the Prussian state sought to tighten property laws, allowing landowners to exert more control over their property and exclude interlopers. First liberals and Catholics, then conservative agrarian reformers and radical nationalists, responded with hostility to these efforts, challenging landowning elites. Whereas the romanticisation of the 'German forest' has long been seen as an expression of landowners' efforts to manipulate national sentiment, these developments illustrate the complicated relationship between nature and nation in the late nineteenth century.

Tuesday, September 23, 2014

Storm King again

We've posted on the 1960s Storm King controversy before, and plan to do so again, soon. In the meantime, here's a notice (by way of Legal History Blog) of the recent publication of Storm King Mountain and the Emergence of Modern American Environmentalism by Robert Lifset (U. Pittsburgh Press, 2014). The publisher's description:
The beauty of the Hudson River Valley was a legendary subject for artists during the nineteenth century. They portrayed its bucolic settings and humans in harmony with nature as the physical manifestation of God’s work on earth. More than a hundred years later, those sentiments would be tested as never before. In the fall of 1962, Consolidated Edison of New York, the nation’s largest utility company, announced plans for the construction of a pumped-storage hydroelectric power plant at Storm King Mountain on the Hudson River, forty miles north of New York City. Over the next eighteen years, their struggle against environmentalists would culminate in the abandonment of the project. 
Robert D. Lifset offers an original case history of this monumental event in environmental history, when a small group of concerned local residents initiated a landmark case of ecology versus energy production. He follows the progress of this struggle, as Con Ed won approvals and permits early on, but later lost ground to environmentalists who were able to raise questions about the potential damage to the habitat of Hudson River striped bass. 
Lifset uses the struggle over Storm King to examine how environmentalism changed during the 1960s and 1970s. He also views the financial challenges and increasingly frequent blackouts faced by Con Ed, along with the pressure to produce ever-larger quantities of energy. 
As Lifset demonstrates, the environmental cause was greatly empowered by the fact that through this struggle, for the first time, environmentalists were able to gain access to the federal courts. The environmental cause was also greatly advanced by adopting scientific evidence of ecological change, combined with mounting public awareness of the environmental consequences of energy production and consumption. These became major factors supporting the case against Con Ed, spawning a range of new local, regional, and national environmental organizations and bequeathing to the Hudson River Valley a vigilant and intense environmental awareness. A new balance of power emerged, and energy companies would now be held to higher standards that protected the environment. 

Monday, September 22, 2014

The Columbia River Treaty

July's Environmental History has a book review by William Lang of The Columbia River Treaty Revisited: Transboundary River Governance in the Face of Uncertainty, edited by Barbara Cosens (Oregon State University Press, 2012). Lang writes:
As John Shurts puts it in his superb chapter, “Rethinking the Columbia River Treaty,” the treaty began as a means to change the river. “The treaty is not a water allocation agreement. What prompted it instead was the promise of storage in the upstream nation to optimize certain uses of the river in the downstream nation. It was about changing the natural hydrograph. High river flows ran at the wrong time of the year to be truly useful, from the frame of reference of the dominant culture in the developing nation south of the border in the mid-twentieth century” (p. 192).
Several chapters stand out as significant contributions to our understanding of the treaty's place in regional and environmental history. Jeremy Mouat's “The Columbia Exchange: A Canadian Perspective on the Negotiation of the Columbia River Treaty, 1944–1964” deftly lays out how the Canadian political landscape bounded the country's negotiators in crafting an agreement with their more powerful southern neighbors. The so-called cooperative development goal, Mouat concludes, “seems to mean implementing longstanding American plans for the river” (p. 30). Nearly alone in this volume, Mary Pearson expresses frustration at the seeming dismissal of Native concerns about treaty negotiations in her contribution, “The River People and the Importance of Salmon.” Pearson implores that any revision of the treaty offers an opportunity “to consider the river tribes' aboriginal and treaty rights to the salmon and the water in the Columbia River” (p. 81). In “When Courts Run Regulated Rivers: The Effects of Scientific Uncertainty,” Carmen Morse sorts out a complicated and often poorly recounted history of contentious judicial reviews of Columbia River management, concluding there is no simple or singular way to apply “best science” to the choices facing the two nations that share the region's most important natural resource.

Sunday, September 21, 2014

Call for Papers: Association of Young Legal Historians

I am proud to be on the organizing committee for the upcoming Annual Forum of the Association of Young Legal Historians, with the theme "Law in Transition", to be held in Tel Aviv on 1-3 March 2015. This is a good opportunity for grad students, pre-tenure faculty and other "young" scholars to present their work to and network with a diverse, international audience. The Call for Papers is here; proposals are due November 1 and steeply discounted registration fees and accommodations will be provided for those needing them.

Friday, September 19, 2014

Returnable and disposable bottles

The latest Environmental History has an article by Robert Friedel, "American Bottles: The Road to No Return". Friedel discusses the complex causes of the move from returnable drink containers to disposable ones, mainly in the 1960s and '70s. Among other factors:
As early as the 1920s, increased use of packaging and increased mobility had been seen as jointly leading to a desecration of the land- and cityscape through indiscriminate littering. When “Keep America Beautiful” was organized as a national antilitter campaign in 1953, it was no coincidence that the leaders were from can and glass manufacturers. It was also no coincidence that this was the same year that the first serious legislative moves were made to discourage litter through controls of beverage containers. Vermont and Michigan experimented with legislation either to require deposits or to ban one-way containers altogether, but these efforts were short lived. Keep America Beautiful worked hard to divert efforts away from legislation and toward “cleanup drives” and educational campaigns.
advertisement, Washington Post, Aug. 4, 1949, 14
By the mid-1960s, however, political resistance to the rapidly spreading disposable containers intensified. The image of “The Beer Can by the Highway” had been popularized by essayist John A. Kouwenhoven to suggest the difficulty abundance posed to the quality of American life. The bottlers read in February 1965 of legislation proposed in four states, including California, to require substantial deposits on all beverage containers to discourage littering. None of these came to fruition. The speed with which the litter problem became prominent is startling in light of the shift to nonreturnables, which was still not that advanced in 1965. Returnable bottles represented 41 percent of beer sales that year and 82 percent of soft drinks. Nonetheless, the distress over litter became loud and dangerous for the bottlers.
Bottlers reacted with alarm at the increasing visibility and notoriety of the disposal problem. Occasionally there was frank acknowledgment of their industry's role in creating the problem. Much more typical was the editorial in the American Soft Drink Journal headed, oddly enough, “Guns Don't Commit Murder.” The gist of the editorial was the following: “Great care must be taken that in today's packaging revolution, an unpleasant side effect is not created in the form of inane and untenable laws restricting our containers. Let's be sure the laws stay on target—the litterbugs who abuse our countryside.” The following month the journal devoted most of its issue to “Litter.” This presented the matter in a slightly more balanced way, explicitly recognizing “the disposal problems created for municipalities and other governmental agencies as an increasing number of soft drink containers are converted from the traditional returnable type to non-deposit, one-way bottles and cans.”

Monday, September 15, 2014

Old maps, natural resources, and international law in the South China Sea

(By way of Imperial & Global Forum:) Quartz recently published "The Philippines hopes a trove of ancient maps will prove its territorial claims against China", by Lily Kuo. Kuo writes that last week:
the Philippines opened an exhibit featuring dozens of maps spanning over 1,000 years of history—a collection that the Philippines says disproves China’s claim of sovereignty over a rocky shoal in the South China Sea, which has provoked increasing tensions between the two countries.
The exhibit held by the Institute of Maritime and Ocean Affairs includes maps from as far back as 1136 A.D. that purportedly show China’s southernmost territory has always been the province of Hainan—which would undercut China’s claims to much of the South China Sea, including territory that is claimed by the Philippines and Vietnam, among other countries. Ancient maps of the East Indies, of which the Philippines was a part, are shown to include what is today known as the Scarborough Shoal, a small piece of land about the size of three rugby pitches to the west of the Philippines, home to valuable fisheries and potential fossil fuel reserves.
The article includes some gorgeous old maps, including these:

World map published by Jesuit priest Matteo Ricci (1602 )

Published by Jesuit Pedro Murillo (1734)
(US Library of Congress)

Tian Ditu, or “the Atlas of Heaven and Earth” (1601)
(US Library of Congress)

The exhibit catalog is available on line.