Natural floods, unnatural disasters

Flooded Greenville, Mississippi, 1927
(MOMA)

Following up on yesterday's post on their Mississippi River Tragedies: A Century of Unnatural Disaster, here's another post from Christine Klein and Sandra Zellmer (re-posted from The Hill):

President Obama recently signed a controversial bill that will directly affect the safety of millions of Americans. The fine print is so complicated, though, that it’s hard to predict exactly how our safety will be affected.

Some say that the Homeowner Flood Insurance Affordability Act of 2014 brings desperately needed relief to property owners who face ruinous increases in their premiums for federal flood insurance. To supporters like Sen. Schumer (D-N.Y.), the law preserves the American dream of homeownership from ill-conceived intervention by “an irrational Washington force.”

Others see the new law as election-year pandering and a cowardly reversal of course. Just two years ago, Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 in direct response to catastrophic damage from Superstorm Sandy. The 2012 law prescribed strong medicine to salvage the solvency of the flood insurance program from a shortfall of some $25 billion caused by insurance payouts after Sandy and Hurricane Katrina. Before its rollback on Friday, the 2012 law would have quickly phased out federal subsidies until owners of flood-prone properties paid the true actuarial costs of their insurance. Some (but not all) properties that had been receiving subsidies saw 25 percent rate hikes.  The 2012 law also required more accurate, up-to-date floodplain maps so that people could easily identify dangerous areas, but the new law relies on obsolete maps to assess premiums on existing homes.

It’s impossible to understand this legislative zigzag without understanding our century-long experiment with federal flood control.

Beginning early in the 20th century, Congress tried to engineer the nation out of danger by spending well over $100 billion (in current dollars) on federal levees and dams. But no structure is foolproof, and all have their limits. As one engineer explained, there are two kinds of levees: “Those that have failed and those that will fail!” Case in point—Katrina, a mere Category 3 hurricane, made short work of the Industrial Canal and the 17th Street Canal levees.

Flood control and unnatural disasters

Christine Klein and Sandra Zellmer recently published Mississippi River Tragedies: A Century of Unnatural Disaster (NYU Press 2014). At my request, the authors sent me this description of the book:

The book chronicles the history of the Mississippi River Basin, which drains about 40% of the continental United States. Through a series of historical vignettes, the book uncovers the nation's century-long experiment with federal flood control. With the best of intentions, we transformed natural disasters such as floods and hurricanes into "unnatural" disasters. In the words of one reviewer, the authors "have provided a thoroughly engaging account of the human contributions to so-called 'natural' disasters that reads like a good mystery novel."

As the book reveals, engineers have done astounding things to bend the Mississippi River to their will: transforming over a thousand miles of roiling current into a placid staircase of water; imprisoning the mighty flow behind walls of levees; even forcing one of the tributaries to flow uphill. But despite our best efforts to control the river, so called "natural" disasters continue to strike the Mississippi basin. Raging floodwaters decimate waterfront communities and dislodge everything in their path--homes, trees, livestock, even dozens of caskets at a time. Mississippi River Tragedies reveals that it is seductively deceptive--and dangerously misleading--to call such catastrophes "natural."

The book  highlights the historical development of a trio federal policies designed to protect the nation from floods: federal structures (such as levees and dams), federal disaster relief, and federal flood insurance.  These policies backfired. As an unintended consequence, they lured more people into harm's way by conveying  a false sense that it is safe to settle in dangerous, flood-prone areas. The book concludes with a series of recommendations--including giving rivers room to flood--to avoid yet another century of unnatural disaster.

Tomorrow we'll have a post from the authors on the historical background to the Homeowner Flood Insurance Affordability Act of 2014 (and another post here).

The Malthusian Moment

As H-Environment is re-posting all their old roundtable reviews, we'll be noting some of them here. Today I'd like to note the rich and fascinating discussion of Thomas Robertson's The Malthusian Moment: Global Population Growth and the Birth of American Environmentalism (Rutgers UP, 2012). Said "moment", with its concerns about finite resources insufficient to support a growing world population, supplied at least some of the intellectual background to the new American environmental legislation of the 1960s and '70s, and included classics such as Garrett Hardin's "Tragedy of the Commons".

An example of the interesting roundtable commentary, here from Saul Halfon:

...modern Malthusianism, often referred to as neo-Malthusianism, is not synonymous with Malthus’s original theory, which was focused more narrowly on food and England, and bound tightly to an existing theory of class. Malthus also understood birth control as a moral vice and as a detriment to capital and so preferred the inevitability of population boom and bust among the lower classes (Perelman 1979). Neo-Malthusians by contrast are a decidedly interventionist bunch, particularly when it comes to reproduction, and they conceptualize natural limits in a much expanded way. Nevertheless, this position remains associated with Malthus because of its continued focus on natural limits in relation to geometric population growth.

Thus, in the age of ascendant liberalism throughout the post-war period, the traditionally conservative Malthusian position took on the mantle of interventionist, progressive radicalism, challenging the very premise of growth and progress by appealing to a naturalistic argument about limits. This position appeared at first to align well with post-Marxist interventionism which was similarly challenging liberal and capitalist growth models. The progressive branches of both movements supported greater social equality, particularly for women. The weak coalition between these two sets of actors, however, was fractured by concerns over coercion, immigration, and racism as the post-Marxist focus on social justice and distribution of wealth encountered the non-negotiability of a neo-Malthusian emphasis on natural limits. From this macro-political frame, Robertson’s story sheds new light on how the focus on limits managed to gain a foothold in the otherwise solidly liberal progressivism of post-war America, laying part of the groundwork for modern environmentalism, and how liberalism was ultimately reasserted.

Private environmental governance

Michael P. Vandenbergh has posted "The Emergence of Private Environmental Governance". The abstract:

Environmental law has long been viewed as a public law field, with policymakers and practitioners conditioned to look to government for solutions to environmental problems, but private governance is playing an increasingly important role. Will private environmental governance become a mainstay of environmental law and policy, or is it another passing fad? This Article examines several issues that will determine the answer to this question. The Article concludes that although private environmental governance is not a substitute for public governance, it is a discrete field worthy of attention by policymakers, practitioners, and theorists.

 The article also opens with this historical reflection:

Flood control and soil conservation districts

Despite it's future-leaning title, Jerrold Long's "Making ‘Conservation’ Work for the 21st Century – Enabling Resilient Place" has quite a lot of discussion of the history of environmental sensibility and land-use regulation in the US. The abstract:

During the New Deal, as part of a larger effort implementing Progressive-era “conservation” regimes, the federal government authorized the structurally-invasive Flood Control Act of 1936. At the same time, the Standard State Soil Conservation Districts Law promoted the creation of local, place-based efforts to protect or restore locally-valued resources. “Conservation” thus came to signify both the invasive, structural, engineering approach of mid-20th Century flood control, and the local, more responsive and flexible nature of soil conservation districts. But our understandings of our place in the natural world have changed subtly but significantly over the past century. Any legitimate natural resource regime must achieve its resource management goals while balancing its demands with local cultural expectations, which now generally include some desire to protect the natural environment. This article argues – using a case study focused on a small flood control district – that local conservation districts can be used to implement 21st-Century understandings of “conservation” that more accurately reflect local culture and needs. These locally-driven and place-based conservation efforts can improve and protect the aesthetic, health, ecological, and economic resources of a particular landscape, even as they manage that landscape – in part – to satisfy human needs. A system succeeding on all goals would be truly socio-ecologically resilient, promoting resilient ecosystems, a resilient local culture and economy, and a resilient local legal system – together creating a resilient place.

The sea and the law

The latest issue of the Journal of Colonialism and Colonial History has an article by Stephanie Jones, "Maritime Space as Law and Light: Retrieving William Clark Russell's An Ocean Free-Lance (1882)". The abstract:

(New York Society Library)

William Clark Russell's An Ocean Free-Lance (1882) most obviously reads as a brittle homage to the nobility of a certain mode of imperial activity: it is, most apparently, a memorialisation of the privateer. But this is not the novel's only register. It also involves a broody engagement with oceanic space that is harder to interpret. This might simply be read within a belated-Romantic genre of novelistic yearning within the age of steam for the age of sail: in such terms, the novel easily reads as a critique of industrialisation. But the clear legal tones of the narrative and the novel's particular maritime aesthetics indicate that the nostalgia is more fully felt for the loss of a righteous order, a universal lex naturalis that is embodied in—that inhabits—the privateer. But even this is brought into question by the obscure poetics of light and water that slow down the plot and over-determine the atmosphere of the narrative. Via an engagement with recent historiographies of empire and of British privateering, against the background of work on the significance of law within nineteenth-century literature, and with the help of W.C.R.’s contemporary Robert Louis Stevenson, this paper reads An Ocean Free-Lance towards some larger speculations on the anxious meanings of the ocean as both an inhabited and abstracted space of empire.

Disaster and municipal water supply

The latest number of Environment and History has an article by Shane Ewen, "Sheffield's Great Flood of 1864: Engineering Failure and the Municipalisation of Water". The abstract:

Recent scholarly research at the intersection of the histories of technology and the built environment has revealed many tensions surrounding the design, building and management of major socio-technologies like urban waterworks. There remains much scope for research into the interdependence of socio-technological systems, engineering knowledge and the political and commercial agendas of municipal governments and private water suppliers respectively. In particular, the short- and long-term impact of reservoir disasters - examined in detail here through the case of Sheffield's 'great flood' of March 1864, in which over 250 people lost their lives - on the ownership and control of urban waterworks reveals many conflicts within the engineering profession, as well as the urban community itself, about the causes and consequences of socio-technological failure in the mid-nineteenth century. Using a rich variety of municipal, legal and commercial archival records, as well as contemporary newspapers, this article examines the competing interests involved in negotiating the long-term municipalisation of water supplies and concludes that greater attention should be paid to the influence of man-made disasters and engineering actors in this political game.

The Antarctic Treaty System

McMurdo Station, Antarctica, 1983 (photo: US Navy, NSF)

Ben Saul and Tim Stephens have posted the Introduction to their forthcoming Documents in International Law: Antarctica. The abstract:

Since its establishment in 1959 the Antarctic Treaty System (ATS) has defused the risks of sovereign competition which arose from the early era of exploration in Antarctica, and were later brought to a head in the early years of the Cold War. On the whole it has produced a peaceful, stable, effective and widely accepted regime for cooperation on a range of scientific, environmental, and related issues. Rising powers, such as China (which joined in 1983), have been brought into the system. The ATS has proven sufficiently flexible to accommodate new challenges and risks, even as the number of state parties has expanded, thus making consensus on many issues more difficult to achieve. It has also seen off challenges to its normative and institutional authority in the United Nations General Assembly. There is nonetheless ongoing speculation about the future of the Antarctic regime, including rising concerns about security risks. So far there is no serious evidence that tensions arising from these issues threaten to unravel the half-century consensus on the Antarctic regime. To the contrary, the growing number of states participating in the ATS is testament to its vitality. In the long term, the persisting uncertainty about the final status of sovereign territorial, maritime and continental shelf claims will present the greatest challenge to Antarctic stability. The ATS embodies an uneasy truce and cannot indefinitely defer disputes over sovereign title (and thus sovereign rights to exploit Antarctica’s riches). The time will come when it may be necessary to reconsider sovereign claims and to desire an alternative legal architecture for securing Antarctica’s future. This essay provides an overview of the ATS from its inception to the present, and introduces a collection of key primary legal materials, hard and soft, which sustain the ATS and are reproduced in the book which the essay introduces.

Wilderness Act at 50

Lewis & Clark Law School has posted the papers and presentations, along with recordings of the sessions, from its recent "Wilderness Act at 50" symposium. Presentations include Robert Glicksman, "Why The Forest Service and the BLM Have Different Wilderness Management Histories" and John Concillo, "Liberty & Wilderness: William O. Douglas Film Project".

North Cascades National Park

The program and links are here. More on the anniversary here.

Gender, precaution, and DES

H-Environment recently re-posted a 2012 roundtable review of Nancy Langston's Toxic Bodies: Hormone Disruptors and the Legacy of DES (Yale UP, 2010), with comments by Jacob Darwin Hamblin, Mark Hamilton Lytle, Frederick Rowe Davis, Thomas R. Dunlap, and Stephen Bocking, along with an author response.

DES is familiar to law students as the harmful drug that gave rise to the novel tort theory of market-share liability in a 1980 California Supreme Court case, but Langston investigates its deeper history. The drug was banned by the FDA in 1940 based on precautionary thinking, but regulators later reversed themselves and allowed the substance to be used for many purposes, leading to all kinds of harm, including cancer in the daughters of women who took the drug. This is a rich history of toxic-substance regulation, including issues of gender, the history of science, and the precautionary principle.

Lytle, for instance, writes:

Langston is persuasive in connecting the FDA’s failure to follow the precautionary principle to a set of conditions, some specific to DES and others more a consequence of a generation’s commitment to “better living through chemistry.”  One factor involved the uncertainties over contemporary definitions of toxicology. Most scientists held to the belief “the dose makes the poison.”  As a Yale website states, “All chemical substances will exhibit toxic effect given a large enough dose.  If the dose is low enough, even a highly toxic substance will cease to have harmful effect.” The problem, as Langston explains, is that DES and other endocrine disrupters violate that principle.  They are not dose dependent. In fact, they have biological effects at dose levels far below those of other toxins.  Further, the effects do not correlate to an individual’s size but more to age. Exposed fetuses and infants face far higher risk than adults.  Finally, the effects often occur long after the initial exposure, so that affected fetuses may not face cancer or reproductive problems until puberty. 

Labor and environmental law

The last issue of Environmental History has Stefania Barca's survey article, "Laboring the Earth: Transnational Reflections on the Environmental History of Work". Among other things, Barca's rich article raises issues that I think have received too little attention in those working on the historical sources of environmental law, particularly the role of worker safety regulation in setting environmental-legal standards, and the role of the labor movement, and the Left in general, in the development of environmental law. On the first issue, for instance, Barca writes (footnotes omitted):

Another important step in the environmental history of work comes from placing the workplace center stage in our narratives and understanding it as an ecological system. This approach was suggested by Arthur McEvoy in a 1995 article, noting that, from the vantage point of the shop floor, “Ecology points to an analysis of health and safety in terms of the interaction between a number of systems: the worker's body and its maintenance, the productive processes that draw on the worker's energy, and the law and ideology that guide them.” Not only the workplace, but also workers' bodies should thus fully enter environmental history narratives as meta-texts where the political ecology of industrial societies had been written.

An important contribution in that sense was given, again in the United States, by Christopher Sellers's Hazards of the Job, a work that marked a turn in the literature by bridging the history of the workplace with that of environmental science and environmentalism. The book showed how US and European workplaces had been important spaces for knowledge production about human and environmental health and for professional coalitions pushing toward regulation of industrial hazards. Not only has work been extracted from workers' bodies in the course of the industrial era, but so too has knowledge. The branch of medical science known as industrial hygiene developed out of extracting information from workers' bodies and observing their reaction to a variety of risk factors in the course of their work life. This kind of science evolved in Europe and the United States between the last decade of the nineteenth century and the first half of the twentieth, and it reached a wider significance for the environmental movement through Rachel Carson's Silent Spring, which amply relied on research from physicians and industrial hygienists. It was that science that first began to draw the boundaries between normality and abnormality, acceptable and unacceptable limits of exposure and contamination. The environmental movement of the 1960s, according to Sellers, started from the criteria and definitions central to industrial hygiene to attack pollution.

Climate legacy

This blog normally focuses on the past, but here's an article on how history and law might mitigate future environmental harm. Michael Vandenbergh and Kaitlin Toner have posted "Climate Change: Leveraging Legacy". The abstract:

Drawing on the emerging private governance literature and the results of an empirical study, this Article explores whether legacy concerns can be harnessed to address climate change. The socio-temporal trap is an important barrier to climate change mitigation: the costs of reducing carbon emissions will be incurred by this generation, but most of the benefits will accrue to future generations. Research suggests that social influences — including concerns about legacy — can induce individuals to overcome collective action problems, but individuals know that future generations will not have information about who acted today in ways meriting social sanctions or rewards. Insufficient information may undermine three aspects of legacy-driven behavior: the concern about how one’s actions today will be viewed by future generations, the concern about how these actions will affect the social status of progeny, and the alignment of these actions with moral beliefs regarding the treatment of future generations. Making legacy-related information public today also may influence social sanctions and rewards from contemporaries. The Article examines the nature of legacy concerns, their effects on behavior, and the feasibility of a private legacy registry designed to record individuals’ responses to climate change in ways that will not only be disclosed today, but also will be easily accessible for many generations.

Animal rights in Victorian Canada

By way of Canadian Legal History Blog we learned of the publication of "Animal Welfare, Civil Society, and State Policy in Victorian Canada" by Darcy Ingram. The abstract:

Woodland Caribou
(Handout , Mike Jones for Canadian Boreal Initiative)

This essay analyzes the development of Canada’s animal welfare movement during the nineteenth century. Situating Canada’s experience alongside that of England and the United States, it identifies an enthusiastic but conservative response to animal welfare, which the author argues reflects the high level of dependence among the movement’s upper- and middle-class supporters on animals as resources, sources of labour, and objects of sport. In particular, it focusses on the participation of sportsmen, cattle ranchers, industrialists, foxhunters, veterinarians, and others who recognized in the movement both the material and the ethical benefits that might accrue from the improved treatment of animals. As such, the essay brings to the literature on animal welfare and animal rights a sense of the movement’s economic dimensions, or the ways in which material concerns regarding property and productivity converged with but also limited the animal welfare movement’s ethical parameters. In doing so, it accounts for the near absence in Canada of the more radical agendas that informed the movement’s civil society parameters elsewhere, and in turn the ways in which the moderate vision that informed the nation’s animal welfare non-governmental organizations contributed to an equally moderate response on the part of the state.

Yet more on Arizona v California

Jason A. Robison and Lawrence J. MacDonnell recently posted "Arizona v. California & the Colorado River Compact: Fifty Years Ago, Fifty Years Ahead". The abstract:

L. A. Times, January 24, 1923
(Hoover Online)

Hydrologic conditions in the Colorado River Basin have changed markedly in the fifty-year period since the U.S. Supreme Court announced the seminal Colorado River decision of Arizona v. California in 1963. As projected by the Bureau of Reclamation in its recent Colorado River Basin Water Supply and Demand Study, this pattern of change is anticipated to persist during the next fifty years. Water demands exceeded supplies on average in the basin for the first time in recorded history over the past decade, and this supply-demand imbalance is forecast to widen between now and 2060 absent changes in the status quo. Rooted in concerns about reliance interests and expectations attached to Colorado River water in the Lower Basin, this Article considers the nuanced relationship between Arizona v. California and the Colorado River Compact as this relationship is implicated by the supply-demand imbalance. We initially provide an overview of the Compact’s prominent role in the Arizona v. California litigation — notwithstanding the majority’s ultimate disregard of it in the final decision. We then consider Arizona v. California’s facilitation of water uses and losses in the Lower Basin over the past several decades and essential parameters put into place by the Compact that bear on future efforts to manage these uses and losses. We conclude by advocating for the formulation of a Lower Basin water budget that is informed by the Compact’s basinwide apportionment scheme as a means for navigating the supply-demand imbalance.

For earlier posts on Arizona v. California see here.

French environmental protection

H-Environment recently posted "Environmental Protection in a Light-Green Country", Chris Pearson's review of Une protection de l'environnement  à la française? (Charles-Francois Mathis & Jean Francois Mouhot eds., Éditions Champ Vallon, 2013), a collection of essays on the history of environmental protection in France and its empire. Pearson writes:

As well as asking what is distinctive about French nature protection and environmentalism, particularly in comparison to Britain, France, Germany, and the United States, many of the chapters engage with Michael Bess’s compelling and influential arguments in The Light-Green Society: Ecology and Technological Modernity in France, 1960-2000 (2003). According to Bess, France has become a “light-green society” in which environmentalist ideas are widespread but shallow; “the result is a social order in which virtually every activity is touched by environmentalist concerns--but modestly, moderately, without upsetting the existing state of things too much.” It is noteworthy how the volume turns towards Bess and other Anglophone environmental historians for inspiration, rather than the approaches outlined by the Annales school or other French historians interested in the human-nature relations, such as Andrée Corvol.

Animals and legal history

Otto Vervaart of the very learned Rechtsgeschiedenis Blog (Legal history with a Dutch view) recently posted "The dog, the cat and the mouse: animals and legal history", on the occasion of a conference on the animal in legal history concluding today in Heidelberg. An excerpt:

Elisabeth Jerichau-Baumann, Die Brüder Grimm (1855)
(Jacob on right)

Animals are no aliens in legal history. Especially in German legal history animals come into view already early. I invite you to look for example at images from medieval bestiaries in Bestiaire du Moyen Âge, a virtual exhibition of the Bibliothèque nationale de France (interface French, English and Spanish), They are portrayed in various ways in the famous illuminated manuscripts of Eike von Repgow’s Sachsenspiegel. In April Dietlinde Munzel-Everling will discuss the animals in the Sachsenspiegel. Jacob Grimm, one of the pioneers of German academic legal history did not only study and publish versions of the medieval animal epic about the fox Renard in his Reinhart Fuchs (Berlin 1834). In an earlier post here I looked in more depth at the various versions of this much liked medieval story. His explanation of German words in his Deutsche Grammatik (first edition Göttingen 1819) often included historical explanations. The word vogelfrei, meaning literally and originally “free as a bird”, was in the context of exiled people and victims of execution who were denied a funeral narrowed to “delivered to the birds”.

Nature in history and law

Jill Fraley has posted "The Jurisprudence of Nature", an article that grapples with the history of the concept of "nature" in several (American) doctrinal areas, not only in environmental law, but in areas such as patents and consumer protection. The abstract:

(Nature-Culture Dichotomy)

Informal regulations defining nature, natural and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of human agency. This article seeks to generate a history of the jurisprudence of defining nature. Such a comparative history naturally elucidates the challenges of predictable outcomes when an ostensibly binary system is effectively implemented as a scale. The evidence of inconsistency and confusion provokes an exploration of the literature of history, sociology, and philosophy on the cultural history and pitfalls of defining nature. The article concludes by exploring how the language of property might more efficiently and reliably allow us to navigate the need to legally distinguish manipulations and interventions to protect both public property and private investments not only in patents, but also in consumer products.

The environment and the African slave trade

We've noted before (here and here) that the history of slavery, obviously a topic of legal history, has important environmental dimensions, as well. Now, by way of Imperial & Global Forum, we have news of  Emory University’s very impressive Trans-Atlantic Slave Trade Database. At Not Even Past, Henry Wiencek writes that the site

reminds readers that the process of moving enslaved Africans across the ocean was as much an environmental process as an economic one. The map, Wind and ocean currents of the Atlantic basins [below] reveals how oceanic forces played a role in determining the travel routes for slave ships. Red and blue lines respectively denote winds and currents swirling between Africa and the Americas, facilitating particular geographic courses better suited for crossing the ocean. These natural forces effectively created two separate “slave-trading systems,” as the site identifies them: one originating in Europe and North America and the other originating in Brazil. Historians have certainly detailed the racism and greed motivating the slave trade, but comparatively little time examining the environmental processes that made it possible. Particular centers of trade emerged along the coasts of Brazil, the Caribbean and West Africa to meet an economic need, but also to harness the currents and winds essential to moving so many men and women such vast distances.  And here too, the visual character of the map makes it easy to see how natural forces worked to shape the historical events.