Corrupt (and polluting) legislation

I recently gave a paper on environmental law in art, on which I plan to post soon (see here). In the meantime, today's post by Dan Ernst at Legal History Blog, the final one in his series on his new book, provoked further thoughts on the subject. Ernst mentions two murals by Elihu Vedder in the Library of Congress, part of a five-mural set on "Government" executed in 1895-6. In "Good Administration" we see order and justice against a background of waves of grain.

Elihu Vedder, "Good Administration" (Library of Congress)

In "Corrupt Legislation", on the other hand, the signs of corruption are evident not only in the overturned voting urn and broken scales of justice, but in the polluting industries in the background.

Elihu Vedder, "Corrupt Legislation" (Library of Congress)

I find this intriguing. In Vedder's view, was the pollution of the late-nineteenth-century industrial revolution the result of corrupt legislation? Were the harmful effects of corruption best seen in the permissive environmental regulation of the period? What can we learn from this mural about contemporary attitudes toward pollution and the law that did or didn't control it?

Please let me know your thoughts!

Soviet environmental law

Soviet environmental law is not a subject that we often come across, but last year's Soviet and Post-Soviet Review published two articles on the topic. One is Laurent Coumel's "A Failed Environmental Turn? Khrushchev’s Thaw and Nature Protection in Soviet Russia". The abstract:

Detaining poachers, from Douglas R. Weiner,

A Little Corner of Freedom: Russian Nature Protection
from Stalin to Gorbachëv 320 (U Cal Press, 1999)

This article aims to identify a “Thaw” in Soviet environmental history. Focusing on the attempts from some actors, above all writers and scholars of the Academy of Sciences to promote an ambitious law at the all-Union level in the second half of the 1950s, it uses new evidences from the central Russian archives to show the existence of an offensive by activists and experts in this field, but also their failure to obtain the creation of a unified state committee of ministerial rank. If the All-Russian Society for the Protection of Nature (VOOP) was sidelined in this battle, the 1960 Law on Nature Protection was significant for its members. It cited the VOOP as the main organ of control in the environmental field, and created an opportunity for new “social organizations” to emerge in the country: the Brigades for Nature Protection (DOP), the first of which was created at Moscow State University.

Environmental effects of enclosure

April's Environmental History has a review by David Zylberberg of Shirley Wittering's Ecology and Enclosure: The Effect of Enclosure on Society, Farming and the Environment in South Cambridgeshire, 1798-1850 (Oxbow, 2013). There is a lot of theoretical writing on the environmental effects of enclosure; this book seems to provide some real environmental-historical data. Zylberberg writes that Wittering:

is able to demonstrate the adaptability of open-field agriculture and refute some of its eighteenth- and twentieth-century critics. It is refreshing to read a discussion of enclosure that focuses on the actual crops planted rather than trying to extrapolate agricultural change from rental values or the intellectual history of improvement. Moreover, this focus demonstrates that the agricultural changes that followed enclosure in South Cambridgeshire increased the number of sheep that could be pastured but did not lead to higher grain yields.

The chapter on the ecological consequences of enclosure is the most original and of interest to environmental historians. Wittering uses the notes of Cambridge botanists, maps, and receipts of timber sales to trace the presence and location of plant species. She is able to demonstrate that the location of trees changed as many older ones were cut down to pay for enclosure while hedges were planted along field boundaries. Another major contribution comes from comparing the grass and flower species in fields at various dates. In this regard, she can demonstrate the loss of heathland flowers and bird habitat as former sheep pastures were plowed up to plant grain following enclosure. Current efforts to preserve characteristically English environments and reintroduce fauna will benefit from these holistic descriptions of Cambridgeshire ecology. 

The sporting life

I recently had the pleasure of hearing Greg Alexander present his recent paper, "The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam", at a workshop here in Tel Aviv. To me the article is a model for the way recent environmental laws can be better understood by placing them in a socio-political historical context that extends beyond modern "environmentalism" narrowly construed; in this case hundreds of years of debate over land reform and the secular transfer of power from the Scottish landed gentry to the working classes. The abstract:

Henry Charles Seppings-Wright,
Privy Councillor, Professor and Politician
(caricature of James Bryce, Vanity Fair 25 Feb. 1893).
Bryce, a scholar, politician, and diplomat,
was a key figure in the movement to provide
public access to the Scottish Highlands.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to "everyone" a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging "right to roam" comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Race, space, and municipal power

Roman Hoyos recently reviewed Before L.A.: Race, Space, and Municipal Power in Los Angeles, 1781-1894 by David Torres-Rouff (Yale UP, 2013) at Jotwell. Hoyos writes:

Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles.

*****

The modern period, which began to emerge in the 1870s and 1880s, is where Torres-Rouff’s connection between race and space becomes most interesting. It was in this period that the white American elite gained control of the city council. What Torres-Rouff finds is that the council’s most seemingly innocuous decisions about land—the laying out and paving of streets and the creation of a sewer system—marked L.A. as a modern racially segregated city. These infrastructural benefits were conferred only upon white American neighborhoods, ensuring the political and economic dominance of the white community, while marking the Chinese, Mexican, and other communities of color as not only poor, but as threats to the public health. 

Protected areas in history

H-Environment's latest Roundtable Review is of Peter S. Alagona's After the Grizzly: Endangered Species and the Politics of Place in California  (UC Press, 2013) (we mentioned the book in a post last year). Laura Watt writes in her contribution that Alagona's "marvelous book... gives a detailed history not only of how species often become proxies for broader environmental debates, but also how protected areas, usually publicly owned, have become the go-to solution for almost all wildlife management conundrums."

Alagona reminds us that this landscape approach did not begin with the ESA.  He traces it all the way back to the last California grizzly, “Monarch,” to die in captivity. Having been captured on orders from William Randolph Hearst, and then settled into his new home at the San Francisco Zoo, Monarch’s fate seemed regretful to his captor, reporter Allan Kelly, who recalled feeling that “he ought to be free in his native mountains” (17).  From there, scientists like Joseph Grinnell and his students, wildlife managers in state and later federal agencies, and environmental advocates and activists increasingly presumed that habitat preservation was the key to species’ recovery from the brink of extinction.

Except that in many cases, they were wrong.  Alagona describes reserves as necessary but insufficient, and concludes that results to date have been mixed.

*****

Protected areas are legally bounded but ecologically porous, meaning that the ecological relationships within them can and will change over time, and creating them can often be politically controversial, particularly they are established to the detriment of local communities. Yet this “protected areas paradigm” remains dominant in conservation work and advocacy. 

*****

In some ways, it seems that endangered species pose management questions we simply do not have answers for, either ecologically or politically.  Alagona quotes Aldo Leopold as writing that “the government can’t buy ‘everywhere,’” and that “…a protected area paradigm that attempts to wall off wildlife and confine its management to a small community of experts risks doing the exact opposite of what Leopold advised” (232).  Yet it is not always clear what alternatives we have.

Native hunting districts

Canadian Legal History Blog recently announced that Michel Morin posted "Propriétés Et Territoires Autochtones En Nouvelle-France II – La Gestion Des Districts De Chasse". (This topic should be of particular interest even to many otherwise indifferent to the particular historical topic, as Harold Demsetz's influential article on the development of property rights made use of his understanding of this history to support his theory on how and why societies move from systems of communal to private property.) The English-language abstract:

In northeastern America, the pre-Columbian origins of aboriginal family territories has created controversy in the past among anthropologists, just as the possibility that Algonquian peoples devised wildlife conservation measures by themselves. At the beginning of the 17th century, however, the French had no difficulty recognizing the territories of Indigenous Nations who controlled access to the area and exercised a form of collective ownership over it. Their chiefs also supervised the use of these lands. With time, the King’s representatives tried to convince the aboriginal inhabitants, who they called “brothers”, to grant each other the mutual right to hunt on each other’s lands. As was the case in Acadia, there existed in New France well-defined hunting “districts” that were exploited under the guidance of the head of a family band. Members from another band or outsiders had to obtain permission to hunt there, although occasional incursions without permission were tolerated. From 1660 on, conservation measures can be seen in the Great Lakes and Lake Champlain regions. In the 18th century, these conservation practices are not documented for the North Shore of the St. Lawrence River, but it seems unlikely that Indigenous people did not have wherewithal to devise such measures on their own. Overall, this conception of territory and ownership seems to have an Indigenous rather than a French origin. It is based on the existence of national boundaries and well-defined districts, even though French observers did not attempt to describe these with precision.

Deer-trap used by Algonquin and Montagnais tribes near Quebec,
from Samuel de Champlain, Les Voyages du Sieur de Champlain
capitaine ordinarie pour le Roy en la Nouvelle France es annees 1615 et 1618
(Penn Library)

An environmental history of the Colorado River

The stream of work on the history of legal battles over the Colorado River continues to pour forth. The latest American Historical Review has a review by Jeff Crane of April Summitt's Contested Waters: An Environmental History of the Colorado River (University Press of Colorado, 2013). Crane writes:

The author notes... the role of Turnerian ideology in the early development of water distribution schemes in the American West. Unfortunately, John Wesley Powell's recommendation for a practical water management system was ignored. Instead, the legal principle of prior appropriation and the requirement, based on laws originating from early statutes in mining districts, that water be immediately used rather than hoarded have bedeviled water management efforts throughout the West ever since. Meant to preclude individuals from controlling water resources, these laws triggered a century-long scramble to gain access to and control the precious resource in amounts far beyond what the Colorado River actually produces.

Later, the book:

examines the poor treatment of Native American groups in water distribution agreements and their largely successful recent efforts to gain more water. Finally, Summitt looks at the historical treaty agreement with Mexico to provide water from the Colorado and the ongoing neglect of this obligation by the U.S. government. The book ends with an excellent chapter exploring efforts to swap, bank, and privatize southwestern water. 

*****

Less critical than Donald Worster's Rivers of Empire: Water, Aridity, and the Growth of the American West (1985), Summitt's book does not explore water as a tool of control or explain the various stages of hydraulic societies. Also, the author gives scant attention to the role of corporate agricultural interests in undermining and weakening federal irrigation programs designed to benefit working-class farmers. Like historian Donald Pisani, she elucidates the ways in which water law, irrigation projects, and distribution gave various southwestern Native communities short shrift. Summitt follows the story through to the late twentieth century, showing the means employed by various Indian nations to secure “wet water” instead of “paper water.” The discussion of largely successful Native efforts to turn promises into flowing water through lawsuits and court decisions, with a string of victories in the 1990s and early 2000s, is well written and useful. 

Dams without hydroelectric power

Dave Owen at Environmental Law Prof Blog posted last week on a US Department of Energy pamphlet with a map showing existing dams with untapped potential to produce power. I was intrigued by the fact that most of the dam sites, especially the ones with greatest potential, are in the Mississippi Basin, not out west. According to an article from E&E that Dave sent me, one factor behind the dearth of hydropower in the East is that the Army Corps, who built the eastern dams, historically wasn't interested in this aspect of dam-building. An interesting reminder on the major environmental effects of factors like which agency gets charge of which projects, and how those agencies view their missions.

Aboriginal fishing rights

More on native fishing rights (by way of Canadian Legal History). The latest Canadian Historical Review has an article by James Kenny and Bill Parenteau, "'Each year the Indians flexed their muscles a little more': The Maliseet Defence of Aboriginal Fishing Rights on the St. John River, 1945–1990". The abstract:

As in the rest of Canada in the postwar period, Aboriginal resistance to state fishing regulations in New Brunswick intensified. This article explores the conflict between Maliseet, commercial and sports fishers, and the state on the Kingsclear Reserve on the St. John River between 1945 and 1990. While the province's Aboriginal population had long asserted their fishing rights on the basis of eighteenth-century treaties, the modern struggle reflected the new challenges of the modernization era when water pollution, over-fishing by an industrial offshore fishery, and construction of hydroelectric dams reduced the river's Atlantic salmon population. Encouraged by an influential angling lobby, state authorities attempted to restrict Aboriginal fishing, especially at Kingsclear, located at the foot of the Mactaquac dam. As they had in the past, the Maliseet resisted enforcement of fisheries regulations, but a new generation of leaders, working closely with other Canadian Aboriginal organizations, also challenged the state in the courts and media. Faced with growing opposition both locally and nationally, and a judiciary increasingly sensitive to Aboriginal issues, federal enforcement declined, setting the stage for a negotiated settlement with the province. This study also shows that Maritime First Nations were active participants in the national wave of Aboriginal resistance and militancy during the 1970s and 1980s.

Daily Gleaner

Climate justice

Today's post is on the relevance of history for current environmental law. Dan Farber recently posted "Responsibility for Historic Carbon Emissions: Lessons from Tort and Statutory Compensation Schemes". The abstract:

Existing legal regimes dealing with analogous issues provide useful guideposts in considering the degree to which emitters bear responsibility for past carbon emissions. With regard to liability for environmental damage, the European Union but not the United States recognizes an exemption from liability if the harm was not understood at the time of the conduct. States have also been reluctant to accept strict liability for environmental damage under international law. Similarly, in European law, a defendant is usually not responsible if the state of scientific knowledge at the time did not enable the discovery of a product defect at the time the product was made. In the United States, many state governments recognize a similar limitation on products liability, although some do not. 

The problem of climate change is unique in some ways, and the legal system is not always the best gauge of ethical judgments. Nevertheless, understanding how societies have handled other cases of historical responsibility can illuminate the problem of climate justice. These analogous legal regimes suggest strongly that the right answer is somewhere between full responsibility for all historic carbon emissions and complete exoneration for those emitters.

Merchants of Doubt

H-Environment recently re-posted its 2011 Roundtable Review of Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (Bloomsbury, 2010). Reviewer Mark Carey writes:

The handful of scientists the book identifies as the "merchants of doubt" in this half-century history are mostly retired physicists who played prominent roles in the development of the atomic bomb, nuclear weapons, or other aspects of U.S military defense during World War II and the early Cold War years.... These doubters repeatedly sought to obscure scientific consensus on a range of issues unrelated to their backgrounds and training. They used the prestige they earned and the political connections they developed as notable physicists not only to get recognition and attention, but also to gain access to influential policymakers. In most cases, these scientists joined with--and were funded by--private industries and conservative think tanks, particularly the George C. Marshall Institute.

The merchants of doubt argued persistently and loudly over time that tobacco smoking (and later second-hand smoke) was not bad for people's health, even though scientists and the tobacco companies themselves knew otherwise. They promoted strategic defense initiatives (popularly known as Star Wars) in the 1980s by suggesting in contrast to specialist scientists that nuclear winter was an unlikely possibility that should not deter increased arms production. They argued (falsely) that scientific conclusions about acid rain, the ozone hole, and global warming were inconclusive and could not be linked to anthropogenic causes. And most recently, some have contended that Rachel Carson was wrong, that her impassioned fight against DDT has actually resulted in the death of millions of African children from malaria that could have been prevented with DDT. 

Indian fishing rights

History News Network recently posted a review by Ron Briley of Sherry Smith's Hippies, Indians, and the Fight for Red Power (Oxford UP, 2012). Briley writes:

Smith begins her study with the efforts of Hank Adams, a Sioux-Assiniboine who grew up on Washington’s Quinault Reservation, to restore treaty-assigned fishing rights for the Northwest tribes. Establishing a camp at Frank’s Landing on the Nisqually River, Native people defied the state’s ban on tribal fishing rights. Crucial in gaining publicity for the cause was the recruiting of celebrities such as actor Marlon Brando. While conceding that celebrities such as Brando or Jane Fonda were sometimes naïve, Smith does not doubt their sincerity. However, the support of some more radical whites who failed to respect Indian customs was more problematic in the Pacific Northwest and elsewhere. In addition, Smith argues that church groups in the 1960s were important supporters of the tribes. The American Friends Service Committee (AFSC), for example, published the influential Uncommon Controversy and provided assistance to the legal actions which culminated in United States v. Washington (1974) that recognized treaty fishing rights in the Northwest.