Cars

The January issue of Environmental History had a review by Rudi Volti of Christopher Wells's Car Country: An Environmental History (U Washington Press, 2013). Volti summarizes:

Covering a wide range of relevant topics, Car Country begins with efforts to improve roads and streets that antedated the automobile. This is followed by a chapter on the first phase of automotive evolution, culminating with the transformative Ford Model T. The narrative then returns to roads; efforts to design and build roads for the accommodation of the rapidly expanding automobile fleet are well-covered, along with largely successful efforts to re-define roads as conduits for automotive traffic rather than serving as sites for shopping, socializing, and play in addition to the movement of goods and people. Changing approaches to land use are then taken up in the next chapter, which emphasizes the development, application, and consequences of zoning. The chapter also describes the different perspectives of city planners and traffic engineers, and how the visions of the latter eventually triumphed. Next up is a chapter on the development of the petroleum industry and the significance of gasoline taxes for financing an expanding road network. The succeeding chapter looks into two diametrically opposed aspects of the automobile's domination: the construction of massive manufacturing facilities as exemplified by Ford's River Rouge plant juxtaposed with efforts to make “nature” accessible to motorists through the development of the national parks system and automotive parkways. The final chapter brings the story to recent times and the post-World War II efflorescence of suburbia. Singled out are the rules promulgated by the Federal Housing Administration for low-cost mortgages that favored car-dependent suburban growth. Also spotlighted is the movement of shops, offices, and factories to the suburbs. Greatly aiding these massive relocations was the greatest public-works program of all time, the building of the Interstate Highway System.

Hard-to-see legal changes illustrated by environmental history

Today we have a guest post from Dan Allosso, a PhD candidate in history who runs the new www.environmentalhistory.us website, which has video lectures, a blog, and reviews of important books in environmental history. Dan recently reviewed one of the most important books of legal history, Morton Horwitz's The Transformation of American Law, 1780-1860 (Harvard UP, 1977), as well as Ted Steinberg's Nature Incorporated: Industrialization and the Waters of New England (U Mass Press, 1994). He put together a condensed version for our blog:

Harvard Law professor Morton Horwitz’s The Transformation of American Law, 1780-1860 is not an Environmental History text, per se. Nor is it a well-known volume outside legal history circles, in spite of winning the Bancroft Prize in 1978. It’s not an easy read, but it tells an important story, which was amplified by Horwitz’s student Ted Steinberg in the EH classic, Nature Incorporated.

Horwitz argues a fairly radical case, which unfortunately is not widely understood because of the book’s subject matter and style. Horwitz focuses on common law. Constitutional law, he says, “represents episodic legal intervention buttressed by a rhetorical tradition that is often an unreliable guide to the slower (and often more unconscious) processes of legal change in America” (xii). Constitutional law also focuses on judicial review, rather than what Horwitz characterizes as a very active, constructive, legislative role taken on by nineteenth century jurists. “By 1820,” he says, “the process of common law decision making had taken on many of the qualities of legislation. As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies” (2). The ancient tradition of “an eternal set of principles expressed in custom and derived from natural law” gave way to an understanding of law as “an instrument of policy” that could be used “for governing society and promoting socially desirable conduct” (30). Once this change had been accomplished, the game became defining the terms “socially desirable.”

Happy Oakapple Day!

May 27 is Oakapple Day, according to Rachel Laudan's blog. She quotes the story of her childhood hero, Grace Reed, from W.H. Hudson‘s A Shepherd’s Life: Impressions of the South Wiltshire Downs (1910):

Grace Reed was a native of Barford St. Martin on the Nadder, one of two villages, the other being Wishford, on the Wylye river, the inhabitants of which have the right to go into Groveley Wood, an immense forest on the Wilton estate [owned by the Earl of Pembroke] to obtain wood for burning, each person being entitled to take home as much wood as he or she can carry.

The people of Wishford take green wood, but those of Barford only dead, they having bartered their right at a remote period to cut growing trees for a yearly sum of five pounds, which the lord of the manor still pays to the village, and, in addition, the right to take dead wood.

It will be readily understood that this right possessed by the people of two villages, both situated within a mile of the forest, has been a perpetual source of annoyance to the noble owners in modern times, since the strict preservation of game, especially of pheasants, has grown to be almost a religion to the landowners.

Now it came to pass that about half a century or longer ago, the Pembroke of that time made the happy discovery, as he imagined, that there was nothing to show that the Barford people had any right to the dead wood. They had been graciously allowed to take it, as was the case all over the country at that time, and that was all. At once he issued an edict prohibiting the taking of dead wood from the forest by the villagers, and great as the loss was to them they acquiesced; not a man of Barford St. Martin dared to disobey the prohibition or raise his voice against it.

Grace Reed then determined to oppose the mighty earl, and accompanied by four other women of the village boldly went to the wood and gathered their stick and brought them home.

Guano and debt peonage

Edward D. Melillo's 2012 American Historical Review article, "The First Green Revolution: Debt Peonage and the Making of the Nitrogen Fertilizer Trade, 1840–1930", has been awarded the Nineteenth Century Studies Association Article Prize. From the beginning of the article:

Between the 1840s and the 1930s, Peru and Chile exported hundreds of millions of tons of nitrogen-rich guano (dried bird excrement) and sodium nitrate (NaNO3) to places as far-flung as California, Virginia, Prussia, Great Britain, and France. For farmers in North America and Europe, guano and sodium nitrate dramatically increased agricultural productivity during the final phase of the Industrial Revolution, which lasted from roughly the mid-1800s through World War I. The widespread availability of imported fertilizers also facilitated a departure from organic “closed systems” of farming, in which nitrogen is cycled among soil, plants, animals, and people at the local scale, toward “open,” energy-intensive approaches to agriculture that included additions of nitrogen from distant places.

This major human intervention in the nitrogen cycle was closely linked to fundamental shifts in global labor relations during the Age of Abolition (1780s–1880s). In 1807, Britain outlawed the importation of African slaves to its colonial empire. The following year, the United States banned the importation of slaves, while in 1811, Spain abolished chattel slavery at home and in all of its colonies except the “sugar islands” of Cuba, Puerto Rico, and Santo Domingo. Despite such overwhelming victories for abolitionism, new forms of servitude emerged to replace those that faced extinction. Often these arrangements involved debt peonage, the repayment of loans with fixed periods of physical labor.

CFP: ASEH 2015

The American Society for Environmental History will be having its next annual conference in Washington, DC, on March 18-22, 2015. The conference theme is "Turning Protest Into Policy: Environmental Values and Governance in Changing Societies". The Call for Papers indicates that law-related papers and panels will fit nicely in this theme. Proposals are due July 20.

You may want to use the Environment, Law, and History list to reach potential panel partners whom you might not reach through lists focused on environmental history, legal history, or environmental law alone. If you're not a member, please see "Sign up for the listserve" on the right side of this page.

Hopefully we can also use the conference to have a meeting of the Environment, Law, and History "special interest group" and make some progress on other activities that some of you have proposed over the last year or so.

Forest and Labor in Madagascar

The January issue of Environmental History has a review by Ivan Scales of Forest and Labor in Madagascar: From Colonial Concession to Global Biosphere by Genese Sodikoff (U Indiana Press, 2012). Scales writes:

The book touches on familiar themes of exclusion, subjugation, resistance, and the clash of worldviews. It focuses in particular on the role of low-wage manual labor in biodiversity conservation, the conservation agents who do the “grunt work” of protecting biodiversity in Madagascar. As well as building and maintaining park infrastructure, portering, guiding tourists, and policing protected areas, conservation agents are expected to spread Western conservation ideology and educate members of their own communities. Low pay and uncertain working conditions mean they must often continue with the swidden forest clearance practices that their bosses find so problematic. This is just one of the many contradictions at the heart of environmental management in Madagascar.

Despite the importance of these laborers, they have often been rendered invisible by the heroic view of conservation in Madagascar, where the intellectual labor of scientists and conservationists is privileged over the day-to-day practices of on-the-ground environmental management and rural life. Sodikoff's thesis is given empirical and analytical depth through its historical approach and comparison of contemporary conservation with colonial labor practices. The book covers a period of just over a century, starting with the arrival of French colonialism at the end of the nineteenth century. Sodikoff reveals the values that shaped colonial attitudes to both nature and labor. While the colonial state saw the island's natural resources as a potential source of great wealth, it saw the Malagasy workforce as a barrier to progress, reluctant as it was to undertake waged labor on concessions and public works. The French government's answer was to instigate a system of “moralizing taxes” and forced labor that it believed would not only supposedly encourage rural Malagasy into the cash economy but also convey a new work ethic and help its mission civilisatrice.

Two on the American administrative state

Yesterday Legal History Blog posted notices on two new books with very different takes on the history of American administrative law. Nothing explicitly environmental here, but environmental law was and is a big part of the administrative state under discussion, and the stakes of this debate for contemporary environmental law couldn't be greater (to the extent that policymakers and lawyers really care about history).

First is Dan Ernst's Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (OUP, 2014). The press writes that Ernst shows that:

the principles of individual rights, limited government, and due process were built into the administrative state. Far from following "un-American" models, American state-builders rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. Soon, however, even judges realized that strict judicial review shifted to courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. This procedural notion of the rule of law not only solved the judges' puzzle of reconciling bureaucracy and freedom. It also assured lawyers that their expertise in the ways of the courts would remain valuable, and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.

Next is Philip Hamburger's Is Administrative Law Unlawful? (U Chicago Press, 2014). The Press describes the book's modest claims:

The history of public lands, the other way around now

Yesterday's post raised the issue of privatizing public lands. Today's is on the transformation of private lands to public. The latest Environmental History has a book review by Sara Gregg of Forests for the People: The Story of America's Eastern National Forests by Christopher Johnson and David Govatski (Island Press, 2013). Gregg writes that the book:

traces the evolution of new ideas about conserving the eastern forests and their watersheds, and it provides an informative history of the conservation movement, the move to pass the 1911 Weeks Act, and the process of creating the eastern national forests. While the authors overstate the role of public advocacy in early forest conservation a bit, this section captures the fascinating evolution in federal land policy that led Congress to fund the reacquisition of eastern forests in order to protect vulnerable landscapes and regionally important watersheds. It is useful, especially so near to the hundredth anniversary of this landmark conservation law, to reflect on the process by which private lands once again entered the public domain, as well as on the long-term consequences of increased federal oversight.

History rears its head in controversy over federal lands

Donald Kochan's recently posted "Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act" shows how the ongoing controversy in the western United States over federal lands (lately given prominence by the Cliven Bundy controversy), with its environmental ramifications, has interesting legal-historical roots. The abstract:

Ruin in Utah’s Recapture Canyon
(Great Old Broads for Wilderness, via Adventure Journal)

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. 

Wheat and industrialization?

Food historian Rachel Laudan has a nice blog post on a recent article from Science, "Large-Scale Psychological Differences Within China Explained by Rice Versus Wheat Agriculture", by T. Talhelm, X. Zhang, S. Oishi, C. Shimin, D. Duan, X. Lan, and S. Kitayama. (This kind of work is a close relative of "legal origins" scholarship.) To me Laudan's critiques are a good example of how good humanities thinking is critically valuable in this age of supposed reverence for numbers and the social sciences (a claim which could use some historicizing itself). The article's abstract explains:

Cross-cultural psychologists have mostly contrasted East Asia with the West. However, this study shows that there are major psychological differences within China. We propose that a history of farming rice makes cultures more interdependent, whereas farming wheat makes cultures more independent, and these agricultural legacies continue to affect people in the modern world. We tested 1162 Han Chinese participants in six sites and found that rice-growing southern China is more interdependent and holistic-thinking than the wheat-growing north. 

After making the point that recent scholarship in many fields casts doubt on supposed different ways of thinking in the East and West, Laudan goes on to question these categories:

Woman harvesting wheat,
Raisen district, Madhya Pradesh, India

West and East seem incredibly problematic categories.  The authors tend to use the West as a synonym for Europe (and, I presume, European settlement colonies such as the US, Canada, and Australasia, though whether the former Iberian empires would count as western is not addressed). Japan and Korea, both with modern economies, remain according to the psychologists more holistic than might be expected.

India, with a similar wheat/rice split is mentioned as a possible test case.

And the Middle East, a wheat area, is left unmentioned.

Laudan goes on to raise some additional questions about the article's commentator's claim that “wheat farming may contribute to explaining the origins . . . of the industrial revolution”:

What about millets and maize in China? Not to mention root crops? What about the fact that China was on a par with the West until the late eighteenth century?  What about the fact that its most economically dynamic area was the lower Yangtze Valley in rice country. What about the industrialization of Japan that was more or less simultaneous with the West?  And when Japan was still relying heavily on root crops in farming? What about the other Western staple crops (mentioned in passing as being barley similar to wheat).  What about maize in the industrializing United States? What about Asian Americans?

Fluvial landscape and the colonial state

The latest Environment and History has an article by Nitin Sinha, "Fluvial Landscape and the State: Property and the Gangetic Diaras in Colonial India, 1790s-1890s". The abstract:

from William Stanhope Sherwill,

General Remark on the District of Monghyr (Calcutta, 1848)

(from the article)

Looking at the interplay of law and revenue as a means of understanding colonial practices and policies towards diaras, this paper addresses a relatively neglected field in the agrarian-ecological history of South Asia. The constant formation and disappearance of lands due to river shifts raised several issues. Among the most important from the viewpoint of the colonial state were secure revenue extraction and the fixation of proprietorial rights. Using a number of case-studies, the paper argues that, although maximisation of revenue did not necessarily mean the dilution of the idea of the Permanent Settlement, the state throughout the nineteenth century failed to arrive at a standardised set of practices because of its own structural (bureaucratic) incoherency, ideological underpinnings and the ecological settings.

Timber and lord-peasant relationships

We commented last year on Paul Warde's article on commons regulation in early modern Germany, which gave English readers a taste of the vast German literature on the subject. Takashi Iida's Agricultural History article from last year, "The Practice of Timber Granting from Lords to Peasants: A Forest-Historical Perspective of the Gutsherrschaft in Brandenburg-Prussia from 1650 to 1850", gives a similar glimpse into the literature on forest regulation, with regulation coming in various legal forms, including feudal relationships, statutes, building codes, and royal patents. The abstract:

Anton Graff, Frederick the Great

In early modern Brandenburg-Prussia, feudal lords (Gutsherren) were primarily the owners of both large estates that required peasant labor and large forests from which they were obligated to supply their peasants with life's necessities. This paper examines the practice of timber granting to peasants in the sovereign demesnes of the Kurmark Brandenburg from 1650 to 1850. To challenge the general understanding that peasants both remained dependent on timber grants and abused them until approximately 1800, this paper investigates the increases in peasants' share of the building costs for their farmsteads and the positive effects of timber regulations in the eighteenth century, including self-regulation by peasants. In addition, while previous studies have accentuated the peasants' thefts of wood after losing their entitlements to the lords' forests due to the reform legislation of the early nineteenth century, this paper presents cases in which peasants successfully retained their entitlements, gained payment for timber grants, or afforested their own land.

African American beaches

H-Environment recently re-posted its roundtable reviews of Andrew Kahrl, "The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South" (Harvard UP, 2012). (See the HUP blog for an interesting historical piece on the Trayvon Martin case by Kahrl.) Jacob Hamblin describes the book:

In The Land Was Ours, Andrew W. Kahrl sees the coastal American South as an ideal way to explore the interconnections between race, space, and environmental change. It was there that, during the Jim Crow era, African Americans had an enormous yet under--‐studied connection to land and sea, largely because privileged whites tended to avoid such land. And yet over time African Americans lost control to resort developers, for complex reasons that involve whites and blacks seeking political and economic opportunities in a natural environment that itself was changing. For Kahrl, it is a tale that compels us not only to see injustice, but also to related African American experiences to other processes in such as the commodification of beaches, the creation of unsustainable environmental practices, and the interaction between culture and place. 

Some tastes of the reviews. Sarah Elkind notes:

In spite of the importance of public ownership in creating and preserving recreational space in the long term, private ownership provided better recreational opportunities for minorities for much of the twentieth century than public lands did. Public Jim Crow beaches were dangerous, polluted and inaccessible. Even national parks were racially segregated during the first half of the twentieth century.

Early environmental economics

Agnar Sandmo has posted "The Early History of Environmental Economics", an article surveying the thought of eighteenth- and nineteenth-century economists on environmental issues, long before Arthur Pigou's famous work on taxing externalities and the late twentieth century blossoming of the field. Thomas Malthus is here, but so are many others whose writing on environmental issues is less well known, including the Marquis de Condorcet, John Stuart Mill, and Alfred Marshall, along with Edwin Chadwick, whom I had not thought of as an economist.

Some examples. Mill, the classical liberal, is quoted as writing the following regarding the proper role of government:

John Stuart Mill

Is there not the earth itself, its forests and waters, and all other natural riches, above and below the surface? These are the inheritance of the human race, and there must be regulations for the common enjoyment of it. What rights, and under what conditions, a person shall be allowed to exercise over any portion of this common inheritance cannot be left undecided. No function of government is less optional than the regulation of these things, or more completely involved in the idea of civilized society.

Marshall anticipated later fascination with the "fisherman's problem" in the late nineteenth century:

Nuclear plant siting

Eric Berndt and Daniel Aldrich have posted "Power to the People or Regulatory Ratcheting? Explaining the Success (or Failure) of Attempts to Site Commercial U.S. Nuclear Power Plants: 1954-1996". The abstract:

Between 1954 and 1996, more than 200 nuclear power projects were publically announced in the United States. Barely half of these projects, however, were ever completed and generated power commercially. Past research has raised a number of potential explanations for the varying siting outcomes of these projects, including contentious political protest, socioeconomic and political conditions within potential host communities, regulatory changes (“ratcheting”) and the cost overruns associated with reactors. This article uses a new, sui generis data set of more than 210 cases of actual and potential host communities over time to illuminate the regional and national variables which led to successful siting (or failure). Controlling for factors highlighted by past studies, we find that regulatory, collective action, and reactor-specific factors best predict the outcomes of attempts to site nuclear reactors over this time period. These findings have important implications in the post-Fukushima “nuclear renaissance” era when many still hope to revitalize the nuclear industry in the US and abroad.

Crimes against Nature

Not Even Past's Henry Wiencek recently reviewed Karl Jacoby's 2003 Crimes against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation (U Cal Press). Wiencek writes that:

the conservationist impulse to protect “wilderness” from the encroachment of human society, Jacoby points out, wholly disregarded the rural communities that had been living there for generations. Overnight, settlers and residents became outlaws and “squatters” residing on government owned land. The hunting and fishing which had sustained those communities was suddenly “poaching,” a crime that could result in fines or banishment.

*****

In order to enforce these new sets of rules, federal and state governments mobilized a bureaucracy of Forest Police to prevent squatting and poaching. Officials set new legal boundaries around “conserved” areas and organized forestland into grids of property ownership. Jacoby argues these efforts to define and protect “preserved” zones oversimplified complex ecological systems and produced unintended consequences. When officials at Yellowstone began hunting predators such as coyotes and mountain lions to maintain animal populations, the number of elk soared, throwing off the park’s delicate ecological balance. Despite the conservationist impulse to preserve nature as it is, park managers were really creating “nature” as it ought to be.

Managing the Mountains

H-Environment recently re-posted their roundtable review of Sara Gregg's Managing the Mountains: Land Use Planning, the New Deal, and the Creation of a Federal Landscape in Appalachia (Yale UP, 2010). There's a lot here on the interaction of cultural-environmental attitudes with property rights, local government, and more.

Jacob Hamblin, for instance, writes in the Introduction that Gregg:

takes us through this tumultuous and complicated history, demonstrating how these areas changed under new land use regimes. Many of them today wear the false appearance of being untouched by humans. In telling the story, Gregg showcases the goals of federal planners and the abilities of locals to influence the outcomes of policy. She focuses in particular on the mountains of Virginia and Vermont, two regions with distinct traditions and histories but with a number of geological and economic similarities. The differences in locals’ abilities to control outcomes were astonishingly sharp. How could it be that some major federal projects were halted by local resistance, as happened in Vermont, while elsewhere the people were virtually ignored, as when Virginians had to move against their will to make way for Shenandoah National Park?

Rather than focus on cultural differences, Gregg explores structural ones that determined how well local people were able to control outcomes. She sees the outstanding factor as the organization of political systems. The small township system of Vermont allowed locals routinely to influence outcomes in regional planning decisions, whereas the large, dispersed areas governed by counties in Virginia gave individuals only a tenuous connection to decision‐making.

Pigs, positivism, and the distance between sub-disciplines

Agricultural History recently published Dolly Jørgensen's "Running Amuck? Urban Swine Management in Late Medieval England". The subject immediately brought to mind the classic "Pigs and Positivism" by Hendrik Hartog, mentioned by Adam Wolkoff here in one of his great posts on teaching the history of law and the environment. Yet Jørgensen appears not to be aware of Hartog's piece, so well-known in the legal history community. Here's her abstract:

Swine as agricultural products were extremely common in the medieval townscape, but pigs are also notoriously damaging if allowed to run amuck. This article explores how local governments tried to regulate pig rearing as an integrated element in urban space, arguing that the authorities attempted to control the movement, feeding, and slaughter of swine as much as possible to circumvent damage to goods, crops, and even people. Urban government and court records from the most populous English urban centers as well as smaller towns from the end of the thirteenth century through the sixteenth century show that swine were not free roamers in towns of the Middle Ages. Because swine were a daily part of urban life, and an integral part of local agricultural production, they required cradle-to-grave controls.

Now Jørgensen is an accomplished environmental historian, but might not her research have benefited from the insights of a leading legal historian (never mind one that wrote on exactly her environmental topic, albeit in a different time and place)? Here's what Hartog had to say at the beginning of his article:

Frank Leslie´s Illustrated Newspaper, August 13, 1859
(Researching Food History)

Bicycles and taxes

Environmental History's "New Scholarship" section alerted me to James Longhurst's "The Sidepath Not Taken: Bicycles, Taxes, and the Rhetoric of the Public Good in the 1890s", from the October, 2013 issue of the Journal of Policy History. Longhurst writes (citations omitted):

For a brief moment at the end of the 1890s, an alternative vision of the future of American transportation flickered to life, and then faded. Bicyclists dissatisfied with the haphazardly maintained, locally financed, and unpaved roads of the nineteenth century first proposed to build their own recreational paths through private, voluntary efforts. But by the end of the decade, supporters of the sidepath movement imagined cities and towns connected not only by roads but also by a separate, bicycle-specific network of improved paths. These paths were to be protected by state law and funded by innovative public/private cooperation on the county and local level, combining earlier voluntary efforts with an institutionalized user-fee model. In a now-forgotten national magazine, some sidepath promoters concentrated on the recreational aspects of interurban paths, while others emphasized the possibilities for personal transportation and practical commuting within cities before the existence of an affordable and reliable automobile. Sidepath networks were built first by taxing cyclists at the county level in northwestern New York, but the passage of user-fee legislation in 1899 provided a template adopted by states across the nation. Sidepath building briefly flourished in Chicago, Minneapolis, Portland, and elsewhere, leading excited cyclists to imagine a network of paths allowing them to “go from New York to any point in Maine, Florida or California on smooth roads made especially for them.” While these dreams were expansive, the movement was severely limited by the persistent problem of convincing politicians and the populace that the construction of infrastructure for a small number of individuals was a “public good.” Development floundered by 1905, as fewer cyclists made voluntary contributions to the project. Most sidepath advocates then threw their lot with farmers and other powerful stakeholders in a combined-use Good Roads movement, abandoning their separate system. When the automobile later came to dominate those combined-use roads, cities slowly became increasingly auto-centric throughout the twentieth century. Had it been successful, a separate sidepath system would have changed American history. But it was a sidepath not taken.

Collective action and energy transitions

Andreas Malm's interesting "Fleeing the Flowing Commons: Robert Thom, Water Reservoir Schemes, and the Shift to Steam Power in Early Nineteenth-Century Britain", published in January's issue of Environmental History, sheds some historical light on contemporary issues of energy and environment. The abstract:

Plan of the Shaws’ waterworks, 1827, in
A Brief Account of the Shaws Water Scheme,
and Present State of the Works(from the article)

In the 1820s and 1830s, British industry faced a choice between two energy sources to fuel its expansion: water and coal. A series of water reservoir schemes were proposed to scale up the power capacity of rivers in the central manufacturing districts, but the schemes with the largest potentials were never realized. Instead, the industry veered toward steam power, fatefully linking self-sustaining growth to the combustion of coal for mechanical energy. This article presents the first inquiry into the fate of the reservoir schemes. It describes the work of Robert Thom, leading Scottish engineer, champion of water, and critic of steam, and traces the fate of several plans in Lancashire. It demonstrates that water, contrary to the dominant narrative of coal in the Industrial Revolution, was consistently the cheaper alternative. The reservoir schemes had the drawback of obliging manufacturers to coordinate their energy consumption, submit to planning, and contribute to collective funding of construction work. In an environment of free competition, this ultimately proved unfeasible. This raises questions on the perception of the role of energy in the Industrial Revolution, as well as of the prerequisites for a future transition to renewable energy sources.

Federalism in the US Clean Water Act

Oliver Houck recently published "Cooperative Federalism, Nutrients, and the Clean Water Act: Three Cases Revisited" in the Environmental Law Reporter. The article has a substantial amount of historical discussion, both of the origins of the federal-state relationship outlined in the Clean Water Act, and of the three cases Houck discusses: the Gulf of Mexico, Florida, and the Cheasapeake.

Houck writes of the Act's section 1251(b) ("It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution"), "No phrase in the CWA is so beguiling, and misleading." He explains (citations omitted) that its language:

dates back to 1948 and the first U.S. law to address water pollution, declaring “the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution.” Which was what the law in fact did. The 1948 statute offered funding for sewage treatment plants, assistance from the U.S. Surgeon General on pollution issues, and a process for referral of serious matters to the U.S. Attorney General, who could then sue to abate a discharge based on concepts of common law. State primacy was genuine.

Cuyahoga River on fire

The 1948 language was retained like a catechism in federal amendments of 1956 and 1961, which made federal enforcement yet more difficult, and those of 1965, which encouraged states to adopt water quality standards, based on their own criteria and uses, and then move to abate discharges that violated them. State primacy remained. Even a national goal of “clean water” was rejected in favor of state management. The federal role was again to fund, to advise, and, where pollution affected interstate waters, to call an “abatement conference” to jawbone a solution, and then only when all else failed.

All else failed. From the 1948 Act to 1970, the United States had managed to bring just a single enforcement case against a single discharger. Federal-state abatement conferences on the Potomac River and the Puget Sound were limping into their second decade. Rivers were catching fire, a funeral was held for the death of Lake Erie, drinking water intakes along the Mississippi were choking on dead fish.

Whaling, international law, and the fisherman's problem

The University of Washington Press recently published Kurkpatrick Dorsey's Whales and Nations: Environmental Diplomacy on the High Seas. Relating the book to earlier work by Garrett Hardin on the tragedy of the commons and by Arthur McEvoy on the history of fisheries regulation, William Cronon writes in the foreword:

There is... [a] problem that McEvoy, writing mainly about fisheries in California, did not need to address at length. Wild animals do not honor national boundaries. Moreover, such boundaries are especially challenging to define and defend in the waters of the open ocean, which is why they have so often been a source of international conflict. If the tragedy of the commons is best solved by state intervention—whether through regulation or the creation of property rights—uncertainties about the effectiveness of state power in maritime environments mean that the challenge of avoiding the fisherman’s problem is not merely economic, but legal, political, and diplomatic as well.

This is why Kurk Dorsey’s book... is such an important contribution, with implications that are as far-reaching as McEvoy’s and Hardin’s. 

*****

Dorsey complicates the story by reminding us that people bring to markets a host of different backgrounds and values combined with national interests and identities. It is these as much as abstract economic logic that shape their behavior relative to the natural resources they harvest. When an environmental challenge becomes truly international in scope, these different values and national interests must be analyzed in all their subtle intricacies if we are to have any hope of shaping economic and political behaviors that can otherwise frustrate even the most well-intentioned efforts to build more sustainable human relationships with the earth. 

Sprawl and taxpayer environmentalism

January's issue of Environmental History had an article by Andrew Wiese, "'The Giddy Rise of the Environmentalists': Corporate Real Estate Development and Environmental Politics in San Diego, California, 1968–73". The abstract:

Dr. Seuss, drawing for cover of San Diego Magazine,

December 1972 (Legendary Auctions)

Changes in US real estate development during the 1960s and early 1970s were a catalyst for popular environmentalism. New flows of capital between builders and investors, including direct investment by Fortune 500 companies and the growth of the first nationwide home-building firms, produced a historic peak in US construction between 1969 and 1973. A case study of San Diego, California, indicates that these changes played a key role in the era's burst of environmental reform. It also reveals an entangled history of environmental and taxpayer politics rooted in the spatial and financial changes of accelerated real estate development. In San Diego, the corporate real estate boom brought together environmental concerns with taxpayer anxieties to produce a right-leaning environmental backlash that would have long influence in the city.

Under the heading "A Taxpayer Environmentalism" Wiese explains further:

In addition to stirring environmental concerns, accelerated real estate development provoked fiscal anxieties that struck home in the local political culture. In a city that voted for Nixon, Goldwater, Nixon, and Nixon in successive elections, aversion to taxes was a staple of politics.

Government liability for flooding

Following up on last week's posts on Christine Klein and Sandra Zellmer's new book, here's another post from them, originally posted on CPRBlog: 

Ft. Calhoun Nuclear Reactor , Nebraksa
in the midst of flooding Missouri River
(Corps of Engineers)

Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution. Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves.  They’re likely to be disappointed.

Lawsuits seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act.  However, this claim is just as unlikely to stick, for good reason.  As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees.  This is because the impact is neither a “permanent physical occupation” of the property by the government, nor is it an excessive regulation that deprives property of “all economically beneficial use” or has otherwise gone “too far” in adversely affecting reasonable investment-backed expectations of the floodplain owners (in the words of the U.S. Supreme Court). It is simply not reasonable to settle in the floodplain and expect that the property will never flood.

These plaintiffs are attempting to bring their claims within the purview of a 2012 Supreme Court case, Arkansas FGC v. U.S, where a landowner (the State Fish & Game Commission) prevailed on its claim that the Corps had physically taken a flowage easement over its land.  The case raised a unique set of facts and the decision is a remarkably narrow one, and it is completely inapposite to what happened on the Missouri River.  Here’s why.

A database of environmental laws

Frank Manheim recently posted "A New Classification of U.S. Environmental Laws", describing and analyzing the history of federal environmental statutes. The research notably begins its analysis with the Northwest Ordinance of 1787, a very different framing than usually encountered. It is unclear to me whether the database is publicly available; I will post any information I receive.

Courtesy of Archiving Early America

The abstract:

A database of U.S. environmental and related laws now includes over 700 statutes ranging in date from 1789 (The Northwest Ordinance Act, signed by George Washington) to 2011. The database was developed in Microsoft EXCEL(TM). The new classification system facilitates identification of historical trends. Supplementary tables include the histories of cabinet departments, bureaus, and agencies.

Study of environmental law and policy history aided by the database reveals cyclic trends in U.S. lawmaking and government performance. Early laws under the first six presidents delegated operational policymaking to federal officials or agencies, whose leaders as well as employees were generally appointed on the basis of competence.

Tax law and environmental history

Over at Legal Planet, Dan Farber blogged yesterday about corporate welfare for oil through the US tax code:

“There Will Be Blood” was the title of 2007 movie about an old-time oilman. If you were doing a similar movie about the situation today, you might call it, “There Will Be Tax Write-Offs.”

The taxpayers have been generous to the industry. Oil companies get about $5 billion per year in favored tax treatment.  Mostly, these provisions allow oil companies to write off costs faster than normal businesses.  The depletion allowance can actually allow a company to write off “costs” that are greater than the amount it actually spent. Some of these special provisions favor the industry as a whole, but others are available only to independents rather than Big Oil. Despite arguments to the contrary at AEI, it’s clear that these are deviations from normal tax principles, which would provide less favorable treatment to such capital expenditures.  These benefit the industry at the expense of not only taxpayers but of other businesses that are competing for capital.

Estimates by the Treasury as well as by independent researchers indicate that the effect on oil production  is small, under 1% of total production.  The effect on price is also miniscule. Mostly, the subsidies encourage producers to drill in marginal locations, which otherwise wouldn’t be worth the trouble. To the extent that these tax rules increase oil production, RFF calculates that each additional barrel of oil costs the Treasury several hundred dollars.

This is a great topic for some historical research. How did these tax breaks get started, and how did they evolve over time? What marginal locations have been drilled in as a result of tax incentives, and how has the environment there been affected? What are the historical relationships between tax breaks for oil production and other parts of the tax code, and between tax law and other aspects of energy law? How have US tax breaks for oil influenced, or been influenced by, the law of other countries?