Wednesday, September 30, 2015

Air pollution law before the Clean Air Act

Speaking of Julian Juergensmeyer, it's worth taking a look back at an article he and Anita Morse published in the 1968 Valparaiso Law Review, "Air Pollution Control in Indiana in 1968: A Comment". The piece provides an interesting window into what environmental law looked like half a century ago, before the Clean Air Act Amendments of 1970 (which most people think of as simply "the Clean Air Act").

The article discusses federal legislation pushing Indiana to regulate more stringently, state legislation pushing localities to do the same, private rights of action, interstate air pollution control compacts, and the issue of enforcement.

For those who think that environmental law before 1970 was nonexistent or ineffective, here's what the article has to say about water pollution law in Indiana:
The Water Pollution Control Board has been quite successful in coping with Indiana's water pollution problem. A state legislator, Senator Mankin, in a recent comment on the Water Control Board's work has stated: "Since the enactment of the Indiana Law, 170 orders have been issued to municipalities and 85 to industries. As a result of this aggressive enforcement program, 97% of the municipal sewage in Indiana is treated, and 85% to 90% of the industrial waste."
Gary, Indiana
For more on the history of pollution law in Indiana, see here.

Tuesday, September 29, 2015

The first environmental law course

Spurred by Laurence Tribe's claim that he taught the first environmental law class in the US, an environmental law professor list recently discussed what was the first environmental law course taught in the US. Julian Conrad Juergensmeyer noted that he taught a course called the Law of Pollution Control at Indiana University Law School Bloomington in 1966 and 1967, and someone thought that Joseph Sax taught a course at Colorado in the mid-sixties.

David Cavers (U Chicago Photographic Archive)
So far, though, it seems that David Cavers at Harvard was the first (preceding Tribe by at least five years). Based on course catalogs at Harvard, Richard Lazarus found that Cavers taught a course “Legal Protection of Environmental Quality” in 1967, a course in “Government Regulation: Product and Environmental Hazards” in 1965 that focused on “air pollution, water pollution, and atomic radiation”, and a course called “Problems in the Public Control of Atomic Energy” in 1951.

Can any of you think of any earlier classes, including those not necessarily called "environmental law"? What about in countries other than the US? Please write me with thoughts.

Sunday, September 27, 2015

Japanese water pollution control

The issue of relations between central and local governments has come up a lot on this blog, including in the context of water pollutionWater History recently published Koji Noda's "Water pollution control history in Japan, effluent standards, and central–local government relations", adding a Japanese angle to the mix. The abstract:
Water pollution is a significant environmental problem. Success or failure of water pollution control policy depends primarily on effluent standards, monitoring systems, and central–local government relations. This paper focuses on the relationship between the central government and the Kanagawa Prefecture government in Japan concerning the history of water pollution control policy from the 1950s to the early 1970s. Kanagawa Prefecture is next to Tokyo, and the Kanagawa Prefecture government has been a leader regarding environmental policy at the local level in Japan. This paper examines two aspects of water pollution control history in Japan. The first is the reason behind the implementation of a unique water pollution control policy by the Kanagawa Prefecture government against the central government, although two of its governors were conservatives. In other words, this paper examines what other historical factors exist to promote or formulate water pollution control policy, other than ideology. The second aspect involves examining what central–local government relations mean, how they change, when and how national policy change affects local policy change, and vice versa.
Osaka in the 1960s (OWESA)

Thursday, September 24, 2015

The Old Man and the Sea

I recently came across an unusual blend of environment, law, history--and literature--in Enrique Guerra-Pujol's article, "Misappropriation and The Old Man and the Sea". The abstract:
We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?

Monday, September 21, 2015

Institutions for water control

from  Hoogheemraadschap van Rijnland

Following up on yesterday's post on bonds issued by early modern Dutch water agencies, an earlier post by Rechtsgeschiedenis Blog had the following interesting things to say on water institutions and law:
The peculiar legal nature of Dutch institutions for water control in the broadest sense of the word is their independent origin and – at least to a considerable extent – still independent status. A Dutch waterschap or hoogheemraadschap is not a municipal, provincial or national institution. Some of the waterschappen occupied themselves only with a part of a region, but since a major reorganization in the nineties of the past century only a small number of large water control boards exist, six hoogheemraadschappen and some twenty waterschappen.... A waterschap had and has its own governing body, organizes its own elections for representatives and its board, collects itself special annual taxes, creates its own regulations (keuren), including penalties to be inflicted. In history some waterschappen could even threaten to impose the death penalty for major infractions against its bylaws, for example not complying to orders to repair dikes or not helping against the imminent threat of a flood.
Leiden is situated on a minor branch of the Rijn, the Leidse Rijn. This river gives its name to the hoogheemraadschap Rijnland.... Rijnland has been often the subject of studies and source editions. The oldest surviving registers have been published for the Society for the Study of Old Dutch Law, De oudste bestuursregisters van het hoogheemraadschap van Rijnland (1444-1520). Regesten van de handelingen van dijkgraaf en hoogheemraden, J.H.M. Sloof (ed.) (Leiden 1999). A section of the Rijnland website is devoted to its heritage, with an image database in which you can find also old documents, artefacts, online finding aids and a treasure gallery. One can find further materials for the history of this heemraadschap at the Regionaal Archief Leiden. This archival centre, too, has an online searchable image database. You will find for example building construction drawings submitted to the hoogheemraadschap.
In my opinion creating or having independent institutions for water control is not only a phenomenon for institutional historians but a subject worth of further investigation. This century will witness the growing importance of natural resources, will perhaps even see battles and wars for water, and you are invited to contemplate the example of a region with in this respect a special balance of powers.
I would add that independent institutions for water control is not a uniquely Dutch phenomenon, but one found in many cultures and legal systems - think for instance of irrigation districts, user-owned corporations, or acequias. Though the issue of individual property rights in water gets a lot of attention, in practice water is usually managed and allocated through these collective institutions.

Sunday, September 20, 2015

Yale's Dutch water bond

Courtesy Yale University

The story of the 1648 bond held by the Yale rare books library, on which the university will be paid interest, has been making the rounds. The always erudite Rechtsgeschiedenis Blog (Legal history with a Dutch view) explains:
This week news came out about the upcoming payment of interest to Yale University on a perpetual bond issued in 1648 by a Dutch water authority, the Hoogheemraadschap van de Lekdijk Bovendams. Next week its legal successor, the Hoogheemraadschap Stichtse Rijnlanden, will pay the sum of €136,20 ($154), the interest over twelve years. Yale’s Beinecke Library bought the bond in 2003 as a cultural artefact. 
The website of the Regionaal Historisch Centrum Rjnstreek en Lopikerwaard, the regional archive at Woerden, offers a concise history of this institution. In 1285 a dam had been placed in the Hollandse IJssel to prevent the water of this river to stream into the Lek near the village of Vreeswijk, now a part of Nieuwegein. After floodings in this region of the diocese Utrecht due to neglect of this dam bishop Jan van Diest published in 1323 an ordinance for its maintenance. The schouwbrief of 1323 was followed by more instructions, in particular by ordinances published on behalf of Charles V in 1537. “Bovendams” means “ahead of the dam”, in this case up to Amerongen, to the east, 33 kilometers. From the dam westwards another water authority came into existence dealing with the Lekdijk Benedendams up to the town of Schoonhoven. 
The bilingual website Beursgeschiedenis/Exchange History has a short article showing the 1648 bond is not the oldest surviving one from this hoogheemraadschap, but one from 1624, since 1938 in the possession of the New York Stock Exchange, thus one of the oldest surviving shares worldwide. The 2,5 percent interest yields even today 15 euros. The bonds of 1648 were issued specifically to build a krib, a pier in the Lek near the hamlet of Honswijk, now situated within the municipality Houten. Maintaining such piers and fighting against piers and other structures at the other side of the river kept the hoogheemraadschap busy for centuries.... Like other Dutch water authorities the hoogheemraadschap was an independent authority which could proceed in court against for instance the counts of Culemborg or the States of Guelders. The website for the history of stock exchange does call to attention the fact that even the counts of Holland and the bishops of Utrecht, in medieval times often deadly enemies, both invested money in the maintenance plans of water authorities. 
Some elements in this week’s story need elaboration. You can shake your head in disbelief about a rich university welcoming a payment of just over one hundred dollars, but you might also marvel at the fact of the longevity of institutions vital for the protection of areas threatened by the powers of mighty rivers or seas. Issuing perpetual bonds or rents was not an invention of the Dutch Republic. Medieval rents issued by cities are documented for regions such as Tuscany and Flanders since the thirteenth century. Water authorities could levy taxes to get money, but these taxes were meant to cover the costs of normal maintenance. 

Thursday, September 17, 2015

Natural disasters and legal solutions

Following up on Sunday's post on disasters, here's more on the subject: Franz Mauelshagen recently posted "Natural Disasters and Legal Solutions in the History of State Power". Some excerpts:
Throughout the history of disasters, legal solutions of one sort or another have played a significant role in recovery and prevention, as well as in shaping politics and individual behavior. After the Great Fire of London, following an extreme summer drought in 1666, the city council passed new building laws preventing the use of timber and man-dating stone or brick construction.Wood chimneys were prohibited after fires in Boston in 1631 and in New York in 1648. A list of similar legal changes in response to disasters would be endless. Through building codes,urban fire disasters have left visible traces in cityscapes almost everywhere around the world. In fact, because the new norms impact planning and construction for generations, they continue to leave such traces long after the buildings erected in the wake of the disaster have disappeared. 
Legal solutions operate at the intersection between government and the members of a political community by sanctioning certain types of individual behavior, either through coercion or incentives. In other words, legal solutions aim to achieve a degree of behavioral homogeneity and predictability that legislators consider desirable. The potential of natural hazards and disasters to trigger cultural transformations over the long term ismost obvious in environmentally vulnerable regions, such as dense urban agglomerations, coastal settlements, or agricultural economies in precarious climatic conditions.
So far, only a few historians have considered natural disasters as an element in the evolution of governance. The evidence that has been brought to light suggests that natural disasters probably deserve a place in the history of state power—along with war and state competition. Political response to the second Bubonic plague pandemic in Europe, beginning with the Black Death in 1348, evolved over several centuries and left permanent traces in legal and political systems. Robert C. Palmer diagnosed that, in medieval England, the Black Death transformed “the nature of English governance” towards centralization, a new under-standing of governmental authority,and an enlargement of the sphere of legal matters. Such feedbacks of legal regulations in the realm of governance also explain how hospitals, originally invented to interrupt the chain of infection by separating the healthy from the sick, went from temporary to permanent institutions. The same holds true for medical councils, whose members initially had been appointed only in times of high emergency. In the eighteenth century, however, they became permanent, which made them precursors of departments of health in modern nation states.

Sunday, September 13, 2015

Who by earthquake and who by drowning?

Worms Machzor (1272)

In this time of wandering of nations, apparently partly climate-induced, lawyers are wrestling with the question of the legal status of climate refugees. On the other hand, a traditional view, still held by many, sees a seamless continuity between law and environment.

Over the next couple of days Jews will celebrate Rosh Hashana, the Jewish New Year, also the Jewish Day of Judgment. One of the highlights of the synagogue service for Ashkenazi Jews is the prayer known as Unetaneh Tokef ("Let us relate the power of the day's holiness"), a sort of Jewish Dies Irae, which contains these lines (translation Helen Plotkin):
On Rosh Hashanah it is written, and on Yom Kippur it is sealed.
How many will pass and how many will be created?
Who will live and who will die?
Who in their time, and who not their time?
Who by fire and who by water?
Who by sword and who by beast?
Who by hunger and who by thirst?
Who by earthquake and who by drowning?
Who by strangling and who by stoning?
Who will rest and who will wander?
Who will be safe and who will be torn?
Who will be calm and who will be tormented?
Who will become poor and who will get rich?
Who will be made humble and who will be raised up?

While our modern sensibilities make the causal connection between morality and environmental catastrophe difficult to accept at face value, there is an ethical attraction in the older view's refusal to absolve humans for their responsibility for the suffering caused by "natural" disasters; these become disasters only with the addition of human agency.

As the traditional Jewish New Year's blessing goes, may we all--the wandering and the tempest-tost, as well as those fortunate to have to face only the ethical dilemmas created by the suffering around us--be inscribed and sealed for a good year.

(For more on immorality and environmental catastrophe see here.)

Thursday, September 10, 2015

Swamp drainage and law reform

It turns out that not all legal historians think environmental history is interesting. Today's Reviews in History has a review by Daniel Gosling of David Chan Smith's Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press, 2014).

Here's what Gosling has to say about one of the chapters:
Chapter three looks in more detail at the corruption of the law in the early 17th century, and the complaints of those that were expected to use it. The text does this by examining the case-study of The Case of the Isle of Ely (1609), which saw Coke attempt to negotiate the proposed draining of the Fens, the low-land area of marsh and bog in the east of England. This was such a thorny issue because in order to drain the Fens taxes would have to be raised in the surrounding areas, and parts of the Fens would have to be enclosed to incentivise investors. Although this case-study demonstrated how contentious the common law could be amongst the wider population, and how Coke attempted to solve the problems, this chapter more than any of the others feels like an unnecessary digression from the wider argument, with too much time spent looking at the law in the Fens rather than the more pressing topic of common law reform that the rest of the book had set about to describe.
Some might have a different opinion. I would actually like to see a full-length study of the law of drainage; from what I remember from Catherine Drinker Bowen's book on Coke, commissions of sewers were a fertile source of law.

Tuesday, September 8, 2015

Olmsted and Park Police

Growing up in the DC suburbs, park police were just part of the scenery, like like ornamental cherry trees and squirrels. I never stopped to think about their origins, or why there are park police alongside regular police. David Thacher's "Olmsted's Police", published in the latest Law and History Review, provides some answers.

Central Park, 1875 (click image to enlarge)
Thacher explains that Frederick Law Olmsted, Central Park's co-designer and superintendent, rejected the deterrence model of policing as unsuited for an urban park, its values, and the harms that threatened it. Writing in 1872, Olmsted explained:
On the park there are no stores of private property, no walls or doors to be guarded, and respectable women and well nurtured children are much more tempted to the class of acts which it is the chief business of the park police to prevent than rogues or ruffians.
The service for which there is the most frequent need on the Central Park is, in fact, that of quietly and civilly pointing out to visitors, and mainly to women and children, how they can best obtain what they desire, so far as it is to be found in the park, and cautioning them in a respectful, courteous, and propitiating way when they may seen to be going wrong, either ignorantly or carelessly, or thorough an inadequate appreciation of the harm which would result in the park from actions which elsewhere often pass as venial, if not harmless. Such, for example, would be the picking of way-side flowers or the hunting of birds’ nests in thickets.
His 1873 General Order to the park police further set out his views:
The danger ... is chiefly this, that a few persons, perhaps one in ten thousand of all who pass near any such place, will tramp across it, and in so doing, stamp out the life of the plants, or will, one by one, pick and misappropriate the flowers to private use. They have no more right to do either than to pick their neighbor’s pockets, throw stones at his windows or vitriol at his coat. Yet, of the comparatively small number of visitors who will crush out the life of the ferns, or steal the flowers, it will certainly be still a very much smaller number who are capable of being led intentionally to do any such wrong to their neighbor... . Much the larger part are capable of being tempted to it only because having had no occasion, under ordinary circumstances, in walking along the streets, or when in the country, through the woods and fields, to consider the rights of others in the way that is necessary in the park, it fails to be clear to their minds that they will be wronging others.

Friday, September 4, 2015

Water and public spaces in Weimar-era Berlin

A pernicious myth has it that environmental protection and conservation are a sort of upper-class conspiracy, or at the least a luxury appreciated by the well to do. An H-Urban review by Eliza Martin of Matthew Gandy's The Fabric of Space: Water, Modernity, and the Urban Imagination (MIT Press, 2014) discusses the book's treatment of water in interwar Berlin ("Weimar Berlin" is evocative but confusing), showing that in this context, as in many others, proto-environmentalism was a working-class issue. Martin writes:
Gandy asserts that examining the changing paths water takes through urban spaces gives us new ways of viewing and understanding cities and how they evolve. He is particularly interested in the process of modernization of urban space, and the role water infrastructure plays in that activity. Gandy states that controlling water is a key aspect of modernization and state formation...
Gandy... demonstrates [the] movement towards an emphasis on nature as leisure, when he discusses changes in urban planning taking place in Weimar Berlin. As part of creating a modern city, Martin Wagner, city building commissioner in Berlin, was concerned with providing residents, especially working-class residents, with an opportunity to have contact with nature. Wagner felt one way to do this was to provide access to local lakes and rivers as spaces of leisure. Wagner moved to protect remaining lakeside land from privatization to keep these areas open for the city as a whole, as a public resource, and provided public transportation to these areas. Here we see links between water and infrastructure as not purely a public health issue, but also as about democratizing access to urban space, and offering working-class Berliners the chance to enjoy urban nature. 

Tuesday, September 1, 2015

Conservative anti-environmentalism

Conservative anti-environmentalism is an intriguing historical topic with great relevance for the development of law. I wrote about it last year, and also noted a book review of Brian Allen Drake's Loving Nature, Fearing the State: Environmentalism and Antigovernment Politics before Reagan. Now Linda Bui has a review in Enterprise and Society of Judith Layzer's Open for Business: Conservatives’ Opposition to Environmental Regulation (MIT Press, 2012). Bui writes (among other things):
Layzer argues that contemporary conservative ideas have had an important and mitigating effect on environmental policy—one that is easily underestimated. In part, this can be explained by the conservative movement’s effectiveness at shaping both how and what policy questions come to the table, and not just how they affect policies once they are in place. The author concludes that the consequences of both the direct and indirect (“low profile”) attacks against environmental regulation by conservatives have led to significant delays in the adoption of regulatory measures, the rollback of existing regulations, and a discrediting of the environmental narrative.
The evolution of the tools used by conservatives to try to attack the environmental movement is strongly correlated to changes in the understanding of the economics of regulation and the theory of externalities.... What Layzer... point[s] out... is how cleverly the conservative movement was at playing the academic card. When the economics matched the conservatives’ own needs, they adopted them as their own, and when they did not, they pushed the story line of the minority intellectual elite trying to bully the silent majority. For example, the conservative argument that free markets can solve the problems of the environment if governments are not allowed to intervene simply does not hold water when externalities are present. However, that is not the story that the conservative movement spins. The conservatives’ story begins and ends with the efficiency of the free market. On the other hand, demanding cost–benefit analysis when adopting a new environmental rule is a brilliant strategy when one can attack all the uncertainty associated with both the cost and benefit estimates, guaranteeing a slowdown in rule adoption.