Reversing the past

This is another one of those mind-bending posts in which the past and future are all mixed up. Alejandro Camacho recently posted "Going the Way of the Dodo: De-Extinction, Dualisms, and Reframing Conservation". It involves the possible future "de-extinction" (i.e. revival) of currently (or future) extinct species, and while it doesn't deal with history strictly speaking, it does raise the question of reversing history, as well as complicate the idea of the "natural" in a way familiar to environmental historians. The abstract:

De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises much more fundamental questions about the relationship between humans and nature, and the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on understandings of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.

Through the example of de-extinction, this article illustrates the limitations of the law’s reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity’s indivisibility from it.

Holy property and the Prussian forest

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

Wilhelm Heinrich Riehl (1823-1897),
 demanded the preservation of
public access to the ‘German forest’

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

Storm King again

We've posted on the 1960s Storm King controversy before, and plan to do so again, soon. In the meantime, here's a notice (by way of Legal History Blog) of the recent publication of Storm King Mountain and the Emergence of Modern American Environmentalism by Robert Lifset (U. Pittsburgh Press, 2014). The publisher's description:

The beauty of the Hudson River Valley was a legendary subject for artists during the nineteenth century. They portrayed its bucolic settings and humans in harmony with nature as the physical manifestation of God’s work on earth. More than a hundred years later, those sentiments would be tested as never before. In the fall of 1962, Consolidated Edison of New York, the nation’s largest utility company, announced plans for the construction of a pumped-storage hydroelectric power plant at Storm King Mountain on the Hudson River, forty miles north of New York City. Over the next eighteen years, their struggle against environmentalists would culminate in the abandonment of the project. 

Robert D. Lifset offers an original case history of this monumental event in environmental history, when a small group of concerned local residents initiated a landmark case of ecology versus energy production. He follows the progress of this struggle, as Con Ed won approvals and permits early on, but later lost ground to environmentalists who were able to raise questions about the potential damage to the habitat of Hudson River striped bass. 

Lifset uses the struggle over Storm King to examine how environmentalism changed during the 1960s and 1970s. He also views the financial challenges and increasingly frequent blackouts faced by Con Ed, along with the pressure to produce ever-larger quantities of energy. 

As Lifset demonstrates, the environmental cause was greatly empowered by the fact that through this struggle, for the first time, environmentalists were able to gain access to the federal courts. The environmental cause was also greatly advanced by adopting scientific evidence of ecological change, combined with mounting public awareness of the environmental consequences of energy production and consumption. These became major factors supporting the case against Con Ed, spawning a range of new local, regional, and national environmental organizations and bequeathing to the Hudson River Valley a vigilant and intense environmental awareness. A new balance of power emerged, and energy companies would now be held to higher standards that protected the environment. 

The Columbia River Treaty

July's Environmental History has a book review by William Lang of The Columbia River Treaty Revisited: Transboundary River Governance in the Face of Uncertainty, edited by Barbara Cosens (Oregon State University Press, 2012). Lang writes:

As John Shurts puts it in his superb chapter, “Rethinking the Columbia River Treaty,” the treaty began as a means to change the river. “The treaty is not a water allocation agreement. What prompted it instead was the promise of storage in the upstream nation to optimize certain uses of the river in the downstream nation. It was about changing the natural hydrograph. High river flows ran at the wrong time of the year to be truly useful, from the frame of reference of the dominant culture in the developing nation south of the border in the mid-twentieth century” (p. 192).

***** 

Several chapters stand out as significant contributions to our understanding of the treaty's place in regional and environmental history. Jeremy Mouat's “The Columbia Exchange: A Canadian Perspective on the Negotiation of the Columbia River Treaty, 1944–1964” deftly lays out how the Canadian political landscape bounded the country's negotiators in crafting an agreement with their more powerful southern neighbors. The so-called cooperative development goal, Mouat concludes, “seems to mean implementing longstanding American plans for the river” (p. 30). Nearly alone in this volume, Mary Pearson expresses frustration at the seeming dismissal of Native concerns about treaty negotiations in her contribution, “The River People and the Importance of Salmon.” Pearson implores that any revision of the treaty offers an opportunity “to consider the river tribes' aboriginal and treaty rights to the salmon and the water in the Columbia River” (p. 81). In “When Courts Run Regulated Rivers: The Effects of Scientific Uncertainty,” Carmen Morse sorts out a complicated and often poorly recounted history of contentious judicial reviews of Columbia River management, concluding there is no simple or singular way to apply “best science” to the choices facing the two nations that share the region's most important natural resource.

Call for Papers: Association of Young Legal Historians

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

Returnable and disposable bottles

The latest Environmental History has an article by Robert Friedel, "American Bottles: The Road to No Return". Friedel discusses the complex causes of the move from returnable drink containers to disposable ones, mainly in the 1960s and '70s. Among other factors:

As early as the 1920s, increased use of packaging and increased mobility had been seen as jointly leading to a desecration of the land- and cityscape through indiscriminate littering. When “Keep America Beautiful” was organized as a national antilitter campaign in 1953, it was no coincidence that the leaders were from can and glass manufacturers. It was also no coincidence that this was the same year that the first serious legislative moves were made to discourage litter through controls of beverage containers. Vermont and Michigan experimented with legislation either to require deposits or to ban one-way containers altogether, but these efforts were short lived. Keep America Beautiful worked hard to divert efforts away from legislation and toward “cleanup drives” and educational campaigns.

advertisement, Washington Post, Aug. 4, 1949, 14

By the mid-1960s, however, political resistance to the rapidly spreading disposable containers intensified. The image of “The Beer Can by the Highway” had been popularized by essayist John A. Kouwenhoven to suggest the difficulty abundance posed to the quality of American life. The bottlers read in February 1965 of legislation proposed in four states, including California, to require substantial deposits on all beverage containers to discourage littering. None of these came to fruition. The speed with which the litter problem became prominent is startling in light of the shift to nonreturnables, which was still not that advanced in 1965. Returnable bottles represented 41 percent of beer sales that year and 82 percent of soft drinks. Nonetheless, the distress over litter became loud and dangerous for the bottlers.

Bottlers reacted with alarm at the increasing visibility and notoriety of the disposal problem. Occasionally there was frank acknowledgment of their industry's role in creating the problem. Much more typical was the editorial in the American Soft Drink Journal headed, oddly enough, “Guns Don't Commit Murder.” The gist of the editorial was the following: “Great care must be taken that in today's packaging revolution, an unpleasant side effect is not created in the form of inane and untenable laws restricting our containers. Let's be sure the laws stay on target—the litterbugs who abuse our countryside.” The following month the journal devoted most of its issue to “Litter.” This presented the matter in a slightly more balanced way, explicitly recognizing “the disposal problems created for municipalities and other governmental agencies as an increasing number of soft drink containers are converted from the traditional returnable type to non-deposit, one-way bottles and cans.”

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

(By way of Imperial & Global Forum:) Quartz recently published "The Philippines hopes a trove of ancient maps will prove its territorial claims against China", by Lily Kuo. Kuo writes that last week:

the Philippines opened an exhibit featuring dozens of maps spanning over 1,000 years of history—a collection that the Philippines says disproves China’s claim of sovereignty over a rocky shoal in the South China Sea, which has provoked increasing tensions between the two countries.

The exhibit held by the Institute of Maritime and Ocean Affairs includes maps from as far back as 1136 A.D. that purportedly show China’s southernmost territory has always been the province of Hainan—which would undercut China’s claims to much of the South China Sea, including territory that is claimed by the Philippines and Vietnam, among other countries. Ancient maps of the East Indies, of which the Philippines was a part, are shown to include what is today known as the Scarborough Shoal, a small piece of land about the size of three rugby pitches to the west of the Philippines, home to valuable fisheries and potential fossil fuel reserves.

The article includes some gorgeous old maps, including these:

World map published by Jesuit priest Matteo Ricci (1602 )

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

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

The exhibit catalog is available on line.

A Source of Environmental Concern: The Tyne’s River Court Books, 1644-1834

[Today we have a guest post from Leona Skelton, an environmental historian currently working at the University of Bristol as an AHRC-funded Post-doctoral Research Assistant on the collaborative project, ‘‘The Power and the Water: Connecting Pasts with Futures’’. Her doctoral thesis compared waste disposal, environmental regulation, and attitudes towards cleanliness and dirt in York, Edinburgh and several other northern English and lowland Scottish towns, 1560-1700.]

Carmichael, Sandegate Shore at Newcastle on Tyne (1830)
(R. Johnson, The Making of the Tyne (1895), p. 23)

Environmental concern is something most people proudly associate with more recent times. It is true that Newcastle Corporation, which regulated the estuary of north-east England’s River Tyne, would certainly not win a conservation prize for sensitive river management today. However, the records of their weekly river court, extant from 1644 to 1834, held at Tyne and Wear Archives in Newcastle, provide unique, detailed and valuable evidence of early environmental concern and demonstrate that the men who managed the River Tyne were by no means completely ignorant towards protecting the Tyne from ‘harm’, as they defined it to the best of their knowledge. The stereotypical image of early modern people pouring their waste into the river without any consideration of the consequences of their actions is an enduring but an inaccurate one.

The court books show that the disposal of human and industrial waste was highly regulated, especially on riparian property and even more so on wharves or jetties. Open sewers were designed only to carry rainwater and small amounts of other liquid waste to the river, notably not to carry solid waste to the river. The majority of households used dry privy pits, which were dug out periodically and transported by horse and cart to local farms and applied directly to arable fields as fertiliser. The men who managed the River Tyne’s estuary in the pre-modern period did not understand the chemical changes they caused by permitting urban sewers and riparian businesses to discharge their untreated liquid waste into the river water. But they considered in breath taking detail and depth the consequences of each and every structural change to the bed and channel of the river and they expressly forbade the deposition of any solid waste into the river, either directly or indirectly, something which required substantial and sustained effort to regulate. Their motivations were not environmental in a modern-day sense; indeed, I have not seen the words ‘environmental’ or ‘pollution’ in any of the pre-1800 documents I have read. However, Newcastle Corporation was careful and it was concerned about maintaining its own river standard on the Tyne.

Driven, perhaps, primarily to prevent the choking up of their great liquid highway which was crucial to trade and their revenues, they did think carefully about the proposals they sanctioned and they were concerned about the impact of human activity on the River Tyne in a pre-modern context. They were in touch with their environment, they were concerned about hurting the river, damaging the river, spoiling the river, and even potentially destroying the river, all their own words, and they went to considerable lengths to protect the River Tyne as a result of their concerns. In addition to enforcing a substantial list of specific river bylaws, all servants living in ‘Gateshead, Sandgate, and the Close’ had to swear in court annually that they would not cast rubbish into the river. Many bylaws passed at this time have been criticised as merely reactive or exclusively fiscally motivated, but this procedure, in particular, was preventative. Clearly, fines were the means, not the ends.

Ownership of natural resources in the Third World

Tomorrow is the 41st anniversary of the Chilean coup d'état in which a military junta with Augusto Pinochet at its head overthrew the government of Salvador Allende. A while back Chris Dietrich had a very interesting post on Imperial & Global Forum in which he explored the motivations behind the vehement American opposition to Allende's regime. Some selections:

“Allende was assassinated for nationalizing the . . . wealth of Chilean subsoil,” Pablo Neruda wrote on September 14, 1973. Neruda was lamenting the overthrow and death of his friend, Chilean President Salvador Allende, a week before he himself succumbed to cancer.  “From the salt-peter deserts, the underwater coal mines, and the terrible heights where copper is extracted through inhuman work by the hands of my people, a liberating movement of great magnitude arose,” he continued.  “This movement led a man named Salvador Allende to the presidency of Chile, to undertake reforms and measures of justice that could not be postponed, to rescue our national wealth from foreign clutches.”  Unfortunately, Allende’s flirtation with economic nationalization ran up against the country’s multinational business interests, particularly those that had support from the U.S. government. His socialist reforms were also ill timed; the U.S. government’s ideological view towards the global economy tended towards the Manichean. 

Public utility, past and future

William Boyd recently posted "Public Utility and the Low Carbon Future", in which an interesting historical survey of the concept of public utility in Progressive, American thought serves as the backdrop for discussion of future climate policy. The historical part of the article connects the law of utility regulation to the thought of the American Legal Realists, institutional economists, and pragmatists. From the abstract:

This Article argues that a revitalized and expanded notion of public utility has a critical role to play in efforts to decarbonize the power sector in the United States.

PECO Delaware River Power Plant

In making this argument, the Article looks back to an earlier, more expansive concept of public utility as articulated by Progressives, legal realists, and institutional economists in the early twentieth century. This earlier concept of public utility contains valuable insights for dealing with the current challenges of decarbonization. The Article shows how this broader concept of public utility was substantially diminished by a confluence of external challenges and a sustained intellectual assault mounted by economists and lawyers starting in the 1960s. The narrowed understanding of public utility that resulted, it is argued, has distorted our views regarding the role of markets and disruptive technologies in the sector. In fact, basic public utility principles continue to govern a significant amount of activity across the power sector, including in both wholesale and retail electricity markets. And there are important unrealized possibilities embedded within the public utility concept that hold considerable promise for reforming current regulatory and business models in the face of rapid technological change and growing decarbonization imperatives.

Such principles and possibilities are particularly important in ongoing efforts to increase renewable energy and finance large low-carbon generation projects. They also hold great promise for ongoing efforts to plan for and optimize the integration of increasingly large amounts of distributed energy resources such as rooftop solar, demand response, and energy storage. Indeed, when one looks at the overall scale, complexity, and sequencing of investments needed to decarbonize the power sector over the coming decades (however it comes to be organized), it is clear that the broad concept of public utility offers essential tools for planning and coordinating such investments over the long time horizons contemplated and for managing a system of increasing complexity.

The rise of law and economics

As I've written before, the law and economics movement is of cardinal importance in the legal-environmental history of the last half century. US Intellectual History Blog recently hosted a guest post by Sara Mayeux, "Three Ways of Explaining the Rise of 'Law and Economics,' and Also, One Way". Mayeux discusses "three recent accounts, each emphasizing a different causal mechanism: the two chapters on law and economics in Steven Teles’s book The Rise of the Conservative Legal Movement; the discussion of law and economics in [Daniel] Rodgers’s Age of Fracture; and Brad Snyder’s recent article 'The Former Clerks Who Nearly Killed Judicial Restraint.'” All resonate with the history of economic analysis in environmental law. Some highlights:

Richard Posner

Like most accounts of law and economics, Teles’s narrative begins with the University of Chicago Law School’s strong core of economics-oriented faculty going back to the 1930s and then proceeds to Richard Posner’s tenure at Chicago beginning in 1969. Teles quotes the legal scholar Douglas Baird, who explains how Posner’s prolific and eclectic output diffused law and economics to just about every doctrinal subfield: “In the early seventies, people like Posner would come in and spend six weeks studying family law, and they’d write a couple of articles explaining why everything everyone was saying in family law was 100 percent wrong. And then the replies would be, ‘No, we were only 80 percent wrong.’ And Posner never got things exactly right, but he always turned everything upside down, and people talked about law differently” (Douglas Baird quoted in Teles, 99-100).

*****

In contrast to Teles’s emphasis on particular personalities and institutions, Daniel Rodgers paints law and economics as one detail in a larger panorama. Law, in his account, is one of many ships on the sea of the 1980s, all buffeted in the same direction by the same storm: “the chaotic economic turmoil of the 1970s” (44). In the chapter of Age of Fracture entitled “The Rediscovery of the Market,” Rodgers describes the 1980s as a moment of widespread cultural “enchantment” with the word “market” and all that it represented (41), borne of a collective longing to understand and, perhaps, control the turbulent economic forces that were remaking America in so many confusing ways. He subsumes law and economics into this larger cultural turn, offering it as just one more discipline-specific example among many: “In the universities, the analytical tools of microeconomics were employed to extend models of utility-maximizing behavior into virtually every quirk and cranny of human life. Lawyers talked knowingly of Pareto optimality and the Coase theorem; philosophers and political theorists debated analytical models of rational choice. In more and more contexts and in answer to a broader and broader range of questions, one heard now that ‘the market decides’” (42). 

Environmental-legal conflicts in the western Mediterranean mining industry – Portugal

[We have today a guest post from Paulo Eduardo Guimarães, Senior Lecturer in Contemporary History at the University of Évora and researcher at NICPRI (Research Unit on Political Science and International Relations). Paulo presented a paper on this topic at the recent World Congress on Environmental History at Guimarães.]

The growth in the demand for sulphur and copper by the British world economy was directly responsible for the spurt in the exploration of old mine deposits of pyrite ores beginning in the middle of the 19th century in the western Mediterranean. As consequence, the roasting of pyrites in blast furnaces or in open air ‘telleras’ in large scale operations led to conflicts with landowners, farmers, peasant communities, miners, and local populations affected by acid rain and sulphur smoke.

The old open pit mine of Sao Domingo (1958-1965), now full of acid waters

The violent incidents of Rio Tinto in 1888, when the Spanish army intervened to repress a peaceful demonstration against that pollution, killing about two hundred men and wounding an indeterminate number of other protesters, became the landmark of that conflict in the historiography of the western Mediterranean mining industry. However, violent reactions against modern mining industries were not exceptional in this part of the world. An account of these types of industrial conflicts in Portugal shows the emergence of popular violent reactions against mining operations due to environmental disruption. These included the occupation of mining fields, ‘Luddite’ actions (destruction of machinery, forests, and mining infrastructure), and sabotage in larger explorations located in the southern Alentejo province and in the mines of the Aveiro district.

The detailed analysis of each incident reveals a more complex picture than the label ‘peasant protest’ or ‘environmentalism of the poor’ suggests. Not only peasants and poor people were involved in collective actions against mining companies; landowners and farmers made use of legal instruments. Yet they were often unsuccessful in court, as the mining law favoured the foreign capitalist ventures. The use of ‘expropriation for public utility’ was a sword of Damocles hanging over these disputes, and the companies often used it.

Mervyn Susser and the question of causation

George Conk recently blogged on the passing of epidemiologist Mervyn Susser, 92. Susser wrote, among other things, on the problem of causation, which can often be a serious obstacle to obtaining damages for environmental harm (or instituting regulation to prevent it). Conk writes:

The former editor of the American Journal of Public Health, he was a South African-born progressive, who collaborated with his wife Zena Stein.  I had just began to seriously look at the problem of how to prove causation of disease in occupational illness cases where no exact mechanism  of injury could be identified. Susser gave me direction as I represented the Trial Lawyers Association  in the asbestos-related disease case Landrigan v. Celotex, a landmark guide in the use of scientific evidence.

*****

Mervyn Susser, like the great progressive epidemiologists Irving Selikoff  and Sir Austin Bradford Hill, was motivated by the fight against disease and the need to identify causal relationships.  The epidemics of heart and lung disease associated with tobacco and asbestos motivated Selikoff and Hill. Susser, a pioneer of community medicine, worked in a clinic treating Black citizens in Johannesburg. In the progressives view causal inference was to be achieved neither by idolatry of formal tests of statistical significance nor by anecdotal snapshots.  Rather the public health called for a socially aware observational perspective informed by clinical methods, pathology, and biostatistics.  No single factor was decisive.  The health of patients called for effective strategies, not skepticism. 

*****

Dr. Susser explained that scientific skepticism is to be doubted.  “We have to practice believing”.  He wrote:

In the end, a quality which lawyers should understand better than any- judiciousness- matters more than any.  Scientists use both deductive and inductive inference to sustain the momentum of a continuing process of research.  The courts of law, and the courts of application, use inference to reach decisions about what action to take. Those decisions often cannot rest on certitudes, most especially when population risks are converted into individual risks. It is my firm belief, nonetheless, that practical decisions that draw sustenance from scientific inference will be better decisions than those that do not.