Nuisance law versus economic efficiency in Victorian England

Victorian-era nuisance litigation continues to prove fertile soil for legal-environmental history. H-Environment recently published Carry Van Lieshout's review of Leslie Rosenthal's The River Pollution Dilemma in Victorian England: Nuisance Law versus Economic Efficiency (Ashgate, 2014). Some extracts:

The river pollution dilemma emerged as Victorian England’s increasing urbanization and sanitary reforms led to the disposal of urban waste and effluvia into the rivers of the surrounding countryside. Since English nuisance law protected the rights of downstream riparian landowners from nuisance caused by those upstream, the enjoyment of lands and rivers by a few private individuals was brought into conflict with the sanitation and public health of urban inhabitants. As a Northampton commissioner framed the dilemma: “is it not better that one family should suffer a nuisance [from sewage pollution] than that half Northampton should be poisoned?” (p. 39). The polluting towns’ defense that their actions were in the public interest was not an arguable defense in law, and the Court of Chancery generally held the towns liable for the environmental pollution. 

However, that is not where the story ends. In this well-researched book, Leslie Rosenthal examines ten legal conflicts over river pollution, and shows how judges balanced the formal upholding of the law with the management of the nuisance. While the polluters were held liable for causing the nuisance, in none of the case studies was a town’s sewer outlets physically stopped by the courts. Instead, the court took on a supervisory role on the process of abating the nuisance by ordering injunctions, but not actually enforcing them until a certain date, thus allowing the towns the time to adjust their sewers’ outflows. An important theme of the book is that the existing nuisance law was ill-equipped as a protector of the environment, as complainants could be paid compensation or sewage could be diverted, which solved the legal case but did not actually address the pollution itself. In addition, the technological options for treating the sewage were limited at the time. As a result, Rosenthal argues, the cases in which the court induced a town to reduce the nuisance of its pollution should be considered a success “worthy of celebration” (p. 231). 

Origins of emissions trading

I don't know why Daniel Cole's "Origins of Emissions Trading in Theory and Early Practice" has gotten so few downloads--maybe it's the one-line abstract. So here are some highlights from the article:

In 1968, the late Canadian economic historian John Dales elaborated the theory of cap-and-trade in his prescient book, Pollution, Property, and Prices [University of Toronto Press, 1968]. [note: Dales was not the first economist to recommend tradable permitting. Two years earlier, Thomas D. Crocker of the University of Wisconsin – Milwaukee suggested the idea. Dales, however, was the first to actually describe how such an approach might be structured.] Dales envisioned a ‘market’ in ‘pollution rights’ created by the government. First, the government would impose a quota limit on allowable emissions, as it regularly does in ordinary regulation. This quota limit, often referred to as a ‘cap,’ must be set administratively in order to render available emissions units scarce; otherwise, no market for them would develop. With the cap in place, the government would then issue pollution rights (usually referred to as ‘allowances’ or ‘credits’) equal in number to the cap. Each pollution right would be equal to one unit (usually, a ton) of pollution.

*****

In practice, emissions trading evolved, almost entirely, in the context of air pollution control under the 1970 Clean Air Act and its amendments. That statute did not make any provision for the kind of transferable pollution rights system Dales envisioned. As early as 1974, however, the Environmental Protection Agency was experimenting with transferable pollution rights programs. By 1980 the agency had approved four distinct emissions trading schemes 

Whales, Bees and Other Valuable Finds

If the hot weather is getting to you, maybe some Scandinavian law will cool you off. Comparative Legal History recently published "Finding, sharing and risk of loss: of whales, bees and other valuable finds in Iceland, Denmark and Norway", by William Ian Miller & Helle Vogt. The abstract:

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of insurance-like institutions arose, aggressively, to encourage risk spreading and overall risk lowering by sharing. The Icelandic laws, especially, show a rather remarkable sophistication regarding risk sharing. They were very alert to the kinds of strategies of avoidance people might employ to evade the rules.

Bees in Norway

Property and the Appalachian Trail

Maybe some of you are out hiking right now. When you get back you may want to read Sarah Mittlefehldt's Tangled Roots: The Appalachian Trail and American Environmental Politics (U Washington Press, 2014), reviewed in January's Environmental History by Margaret Brown. Brown writes:

The Appalachian Trail (AT) is a remarkable story of volunteerism because in the early years no government agencies were involved in its creation and maintenance. Local hiking clubs sought permission of landowners to develop the trail and negotiated the rough terrain of property rights. “The AT maintainer had to be one-third trail worker, one-third organizer of other trail workers, but one-third diplomat among the landowners” (p. 38). Not until 1945 was a bill proposed to incorporate the AT under federal authority, and it took the 1968 National Trails Act to create the concept of a distinct corridor of protected landscape under the care of state agencies, the US Forest Service, and the National Park Service. According to Mittlefehldt, the 1968 law did not simplify the story of the AT; rather, it polarized landowners because the protected corridor required additional takings at the same time that the Sagebrush Rebellion and the property rights movement were gathering momentum. The conflict between environmentalism and property rights resulted in the unique contemporary position of the trail: the entire management of the AT was given in 1984 to a nongovernmental nonprofit—the Appalachian Trail Conservancy (ATC)—with both a professional staff and a prodigious number of volunteers.

The North Pacific Fur Seal Convention

Pelagic Fur-Seal Hunting off Akootan Pass, Bering Sea, (Harper's Weekly April 1892)

For those of is facing hot summer temperatures this July, thoughts of cooler climes: January's Environmental History published Robert Irwin's "Canada, Aboriginal Sealing, and the North Pacific Fur Seal Convention". The abstract:

The National Oceanic and Atmospheric Administration has described the 1911 North Pacific Fur Seal Convention as one of the ten most important events in environmental history. Article IV of this Convention provided First Nation sealers with harvest rights provided they conducted the hunt as practiced previously, without the use of firearms and not under contract to a commercial interest. While historians have studied the diplomatic and environmental aspects of the Convention, little attention has been paid to this Aboriginal harvest privilege. Its inclusion in the fur seal treaty inadvertently contributes to the modern “ecological Indian” construction and foreshadows the current environmental crisis faced by many First Nation communities: their harvest is acceptable provided it is considered primitive or traditional and noncommercial.

Magna Carta and the environment

King John hunting, from Statutes of England (14th century)

Much has been written recently on Magna Carta, now celebrating its 800th anniversary. Jill Lepore's piece at the New Yorker is good; the best is still Tony Hancock's 1959 take.

I was fortunate to attend the recent British Legal History Conference at the University of Reading, as part of which we made an excursion to the meadow at Runnymede where King John signed Magna Carta. The first environmental element in this story is a monument that was never erected at Runnymede, planned to honor William III. Apparently the reason it was not built was that the soft ground of the meadow would not have been able to support it.

William Thomas, Design for a column with a statue of William III
intended to be erected at Runnymede (British Library)

Given the design, we should be thankful for that environmental constraint, but, as usual, the environment didn't get in the way of good ole American ingenuity. Runnymede is now a silly place, with a lot of memorials set up by Americans; the central one, erected by the American Bar Association, looks like a World War II memorial:

American donors also got some very classy plaques:

And the main British contribution to the site just might be a joke:

But enough about Runnymede. Magna Carta itself (here's an accessible English translation) has very little on liberty or what we would think of today as major constitutional issues, and a lot of esoteric clauses ranging from the colorful to the weird to the upsetting. And quite a bit on environmental-legal issues. Take clause 33: "All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." As Nicholas Vincent explains at the British Library's website, what's at issue here is the free navigation, or the public trust as we might call it today.

Rechtstaat and Recht in the German nuclear power debate

The latest Law and History Review has an article by Michael Hughes, "Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983".  The article begins:

Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

Hans Weingartz,
Anti-AKW-Demonstration auf dem Bonner Hofgarten am 14. Oktober 1979

Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the 1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.