Regulation by river commission

This Day in Water History recently posted the following:

December 18, 1913: Municipal Journal article—To Prevent Fox River Pollution. “Geneva, Ill.-Acting under authority conferred at the last session of the legislature, the State Rivers and Lakes Commission has ordered officials of the cities of Batavia, Aurora, Geneva, Elgin and St. Charles to take immediate steps to prevent the pollution of Fox river by sewage and factory wastes. The five cities were given until April 7, 1914, to prepare plans and specifications for filtration or sewage disposal plants or otherwise prepare to discontinue the emptying of sewage into the river. The Fox river cases are the first of the sort to be acted upon by the commission. Similar action will be taken in numerous other cities located along Illinois rivers or lakes if complaints are made and substantiated. Lake Forest and other North Shore cities that have complained of lake water pollution by factories are expected to take their grievances to the commission. Witnesses before the commission testified that during low water periods the Fox river was polluted to such an extent as to he a serious menace to the health of 200,000 inhabitants of the Fox river valley. It was also shown that thousands of tons of ice were taken from the river every year and sold in these cities and in Chicago. Another objection to the emptying of sewage into the river was the fact that fish were unable to survive.”

Commentary: River commissions in several states were beginning to take action against the grossest pollution problems in the early part of the 20th century.

For more on regulation of water pollution in the Great Lakes see here and here.

Natural resource law in Salzburg

Mark Weiner's recently posted his video, "Anna in the Mine", which, among other things, has some interesting talk about historical legal rights to natural resources in the Salzburg region. Archaeologist Anna Holzner explains that the Austrian administrative court has ruled that workers on the Dürrnberg still retain their medieval right to mine (salt) on the mountain.

Art and the history of environmental law - part V: Art and the effects of environmental law

The latest in a series based on my article on art and history of environmental law. After looking at what art can teach us about the historical background of environmental law, we turn now to what we can learn from it about environmental law's effects.

James W. Earl, Twelve Square Miles, 2010 (courtesy of the artist)

Hugh Ferriss, Study for Maximum Mass Permitted
by the 1916 New York Zoning Law, Stage 4, 1922,
Smithsonian Design Museum, Cooper Hewitt collection
(courtesy of the Smithsonian Institution)

The effects of law on landscape are clearly seen in the case of land use law. The U.S. Northwest Ordinance’s imposition of Cartesian order on the living earth is perhaps best appreciated through often beautiful satellite or aerial images (e.g. above). The effects of New York City’s famous zoning ordinance of 1916 were given visual form in Hugh Ferriss’s drawings (e.g. right) and in photographs of the architectural icons built under the code (e.g. below). And the environmental upheaval wrought by American postwar suburban zoning ordinances was given early expression in the utopian/dystopian photographs of places like Levittown, Long Island (below).

Samuel Gottscho, Chrysler Building Midtown Manhattan New York City 1932

Thomas Airviews, Aerial view of Levittown, 1949
(courtesy of Levittown Public Library)

Environmental regulation by public service commission

December 10th's This Day in Water History contains the following interesting snippet, offering some insight on how environmental regulation was carried out before the establishment of agencies with "environment" in their title:

December 10, 1910: Municipal Journal article—Protest Against Impure Water. New Albany, Ind.-Col. Charles L. Jewett, acting for the law department of the city of New Albany, has filed with the Indiana Public Service Commission in Indianapolis a petition asking for the investigation by the commission of the water supply furnished by the New Albany Waterworks Company. It is alleged in the petition that the water is not pure and wholesome, and that the company has not complied with the terms of its contract and franchise, granted August 26, 1904, and for more than three years has failed, neglected and refused to furnish the city pure and wholesome water, as its contract specifically provided. The petitioner avers that the water company has furnished nothing but impure and unwholesome water, containing large amounts of mud, filth, sewage, industrial waste and other foreign matter. The petitioner asks that an investigation be made by the Public Service Commission, and that an order be entered requiring the water company to make improvements, additions and changes in its system.

Commentary: A similar lawsuit was by Jersey City, NJ against the Jersey City Water Supply Company in 1905.

Anyone know what the outcomes of these petitions were?

Update: Michael McGuire points out that the Jersey City lawsuit was covered in detail in his book, The Chlorine Revolution: Water Disinfection and the Fight to Save Lives (AWWA, 2013).

Art and the history of environmental law - part IV: Art and the conditions of environmental law (twentieth century)

Following Part III of this series, featuring the French Impressionists and Oscar Wilde, we move on to the twentieth century.

Franz Marie Jansen, untitled, from Industrie, 1920

In the first half of the twentieth century, air pollution seems to take on a progressively darker cast, both literally and figuratively. While it is difficult to read the pollution in many posters of the interwar era, such as one for the 1925 Paris Exposition Internationale des Arts Décoratifs (above), as anything but a symbol of progress, in the works of the German Expressionists such as George Grosz and Franz Marie Jansen (right), pollution often seems an inseparable part of their generally bleak world view.

George Grosz, Outside the Factories, 1921

Beyond the cultural and aesthetic, American art in this period also seems to begin to engage with pollution as a political issue, and thus potentially a legal one. An early but suggestive understanding of pollution is offered by the symbolist Elihu Vedder’s mural Corrupt Legislation (below) created for the new Library of Congress building around 1898. Art historian Richard Murray explains:

A call to research

Dave Owen recently posted the following at Environmental Law Prof Blog:

(from NMFS)

In environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990. In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law. Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

Art and the history of environmental law - part III: Art and the conditions of environmental law (more Impressionists and Wilde)

Following Part II of this series, I continue the discussion of art and the conditions of environmental law as seen in the work of the French Impressionists.

Monet and Pissarro produced many landscapes of the industrializing Seine Valley around Paris, as did other Impressionists and Post-Impressionists. Manet’s 1874 Argenteuil, les canotiers (1874, above), with its idyllic foreground and smoky background, seems uncertain in its attitude to industrial pollution. It was ridiculed by a contemporary critic who insinuated that the blue of the river must have been the product of industrial pollution, yet T.J. Clark sees it as the picture in which effort was made to place in order the middle class, the countryside, and industry “and insist they belong together.”  

Gustave Caillebotte’s depictions of the same site show a cubist-like ability to shatter reality into multiple points of view. While his Boats Moored at Argenteuil (1883, above) shows no hint of the industry in the area, Factories at Argenteuil (1888, right) shows a bleak industrial landscape with gray smoke feeding gray skies, reflected again in the gray water. La Seine à Argenteuil (c. 1892, below), with its almost natural landscape dominating the foreground and smoking factories in the background, juxtaposes these two aspects of reality, distinguishing, on the one hand, between pristine nature and industrial pollution, yet at the same time melding chimney smoke and natural clouds.  Are these depictions of Argenteuil simply the artist’s attempt to depict different facets of reality, a celebration of industrialization, or a critique and warning of the threat posed by modern pollution to the aesthetic of nature and countryside?

Ecosystem services

I recently came across a very interesting article by Erik Gómez-Baggethun, Rudolf de Groot, Pedro L. Lomas, and Carlos Montes, "The history of ecosystem services in economic theory and practice: From early notions to markets and payment schemes", published in Ecological Economics in 2009. Beyond its explicit subject, it contains an extensive literature review of the history of thought about the environment in classical and neoclassical economics. (For an article by Agnar Sando on a similar topic, see here.) The abstract:

This paper reviews the historic development of the conceptualization of ecosystem services and examines critical landmarks in economic theory and practice with regard to the incorporation of ecosystem services into markets and payment schemes. The review presented here suggests that the trend towards monetization and commodification of ecosystem services is partly the result of a slow move from the original economic conception of nature's benefits as use values in Classical economics to their conceptualization in terms of exchange values in Neoclassical economics. The theory and practice of current ecosystem services science are examined in the light of this historical development. From this review, we conclude that the focus on monetary valuation and payment schemes has contributed to attract political support for conservation, but also to commodify a growing number of ecosystem services and to reproduce the Neoclassical economics paradigm and the market logic to tackle environmental problems. 

Harold Hotelling, whose 1931 "The Economics of Exhaustible Resources"
laid the foundations of modern resource economics

Art and the history of environmental law - part II: Art and the conditions of environmental law (Impressionists and Dickens)

Following Part I of this series, today I take up art and the conditions of environmental law.

A survey of paintings and other works of art from Western Europe and North American reveals that air pollution was a salient fact in the pre-1970 industrialized West. This point, while basic, is not trivial, as one might have imagined that the relative lack of advanced legislation in this area was due to clean skies, or at least to a lack of awareness of the problem. Yet it is clear that artists from Turner to the French Impressionists and on through the American Works Progress Administration were fascinated by air pollution. The aesthetics and politics of this fascination will be explored later; at this point it will suffice to demonstrate its prevalence.

A good place to start is the French Impressionists. Though associated today with paintings in and of nature, they were strongly attracted to scenes of industrialization and modernizing landscapes. The movement was named after Claude Monet’s Impression, soleil levant (1872-73, right), a painting relevant to our topic. The rising sun is indeed prominent in this landscape of Le Havre harbor, but the left side of the painting is dominated by smoke-belching smokestacks and their reflections in the water. Their activity suggests that the gray “mist” enshrouding the rising sun and streaked through the sky above and to the right is in fact the product of air pollution, not morning mists or the artist’s hazily romantic vision.

Many of Monet’s other paintings feature air pollution as well. His paintings of London typically feature chimneys and smokestacks spewing thick clouds of smoke into the air of a city covered in a thick layer of air pollution (often denoted “fog” in the works’ titles). Perhaps most striking are the paintings purporting to be studies of the effect of sunlight on the thick London air; the reference to sunlight in the names of these paintings seems almost ironic. In Le Parlement, effet de soleil (1903, left), for instance, the sunlight indeed plays upon the Thames on the right of the picture, yet in the overall composition the sun’s rays are overwhelmed by the thick, polluted air, much as they are in other paintings in the Houses of Parliament series.

Dickens provides a literary counterpart to Monet’s paintings of London’s air pollution in the opening of Bleak House:

London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. . . . Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes—gone into mourning, one might imagine, for the death of the sun . . . .

American Energy Policy in the 1970s

American Energy Policy in the 1970s, edited by Robert Lifset (U. Oklahoma Press, 2014), was recently reviewed by Peter Grossman in Environmental History and by Fredric Quivik in Business History Review. Grossman is critical:

In general the book seems to be stuck in the 1970s in the same way current policymakers are stuck. It is a major lapse that there is not a careful reflection on the assumptions behind the policies proposed and enacted during the period. Nowhere is there a discussion of the neo-Malthusian mindset that underlay much of the thinking of members of both parties and led to policies such as the enormous synthetic fuels program that were based on forecasts that seemed to fit the facts but turned out to be simply absurd.

Nor does there seem to be an appreciation of the conditions under which policy action was undertaken. Political leaders on both sides, as Jay Hakes argues correctly in his essay, often agreed on the need for aggressive policies—even when they disagreed on what precisely those policies should be. But the most radical legislation was enacted in a state of near panic in which the sense of national crisis was all pervasive. As policymakers, members of Congress and officials of the Nixon, Ford, and Carter administrations needed to be seen as “doing something” about a problem that was so deeply afflicting the general public (but which neither the public nor the policymakers actually understood). In the summer of 1979, for example, legislators were said to be afraid to go back to their districts for the July 4 holiday because of voter anger, and they were said to be ready to vote for any legislation that promised a solution “even if its [sic] wrong.”

There are other curiously 1970s-blindered claims. It is at least suggested that the United States missed a great opportunity to develop alcohol fuels—called gasohol then, ethanol, today—but the ethanol program made no sense, then or now. In fact, in 1978 the Department of Agriculture produced a report that ethanol would have a negative energy balance—more energy would be needed as an input than would be produced as output—and that it would raise food prices. Ronald Reagan, who often seems a bad guy in the story for killing some of these programs, did not end gasohol and synfuels because they were passed by Democrats, but rather because they made no economic sense in the 1980s and in fact never did unless you accepted the gloomy Malthusian vision especially prevalent in the Carter administration.

The most pertinent observation in the book is that of historian Joseph A. Pratt, which is noted only in passing. Pratt is quoted to the effect that a political system like that of the United States is “uniquely ill-suited to handle energy policy.” That seems an irreducible constraint on the kind of activist (often grandiose) energy undertakings of the 1970s and an issue that should have had a much larger place in these essays.

Art and the history of environmental law - part I: Introduction

I'm happy to report that my article, "Art and the History of Environmental Law", has been published by Critical Analysis of Law. CAL's online format, along with excellent editing, made publishing an article with lots of color pictures a real possibility; my article has 29 color figures, a level of illustration impossible in print journals, even one as amenable as Environmental History to this kind of work.

Claude Monet, Boats in the Pool of London, 1871, private collection 

Since I really like the pictures I collected, I decided to share some of them on this blog as well, along with modified excerpts from the article, in a series of posts. Today's, the first installment, outlines the justification for the project.

The first reason for my turn to art is prosaic. Traditional legal sources—treatises, digests, national legislation, and appellate decisions—clearly dedicated to identifiably environmental topics were few and far between before the 1970s, and so legal-historical research of even the simplest sort—identification of the norms of positive law—needs to take up whatever tools, however indirect, it can find. Though the physicality of the environment seemingly makes environmental law a good candidate for historical investigation based on visual sources, the legal element of environmental issues has only been foregrounded infrequently in art, even when environmental issues are clearly the subject of that art. Beyond this seemingly technical task, art may be a useful source for two further dimensions of the historical understanding of environmental law: it might provide insight into the background conditions—environmental and cultural—against which and in reaction to the law developed; and it might provide data for assessing the effectiveness of environmental law.

It is, of course, problematic to assume that a work of art presents an accurate representation of historical reality;  even on the level of subjective perception, assuming that the work of an individual artist is somehow representative of general attitudes may be unwarranted. Nonetheless, the potential profit to be gained from this heretofore unexamined set of sources seems great enough to justify a tentative attempt at using art to try to learn something about the history of environmental law that we might not be able to learn otherwise. In this article I would like to use art mostly as evidence of historical attitudes towards environmental issues, but I believe that it also has some value as evidence of the physical environment in history. As Peter Brimblecombe writes:

Garrett Hobart

According to Michael McGuire at This Day in Water History, today is the 116th anniversary of US Vice President Garrett Hobart's death. McGuire writes:

While much is known about Hobart’s role as vice president (1897-99), his role in the formation of private water companies and his support of these companies through legislation is less well known. Hobart was elected to the New Jersey Assembly and Senate during the early part of his career. During the 1870s and 1880s there was a lot of legislative activity that appeared to be for the benefit of private water companies.

In 1881, one bill that was introduced by Garret A. Hobart, then a state senator, was designed to give private water companies the power to acquire and distribute water resources independent of municipal or state control.  While not explicitly stated, the bill purportedly had a single intention of giving one company, the Passaic Water Company, more power to access water supplies to prevent water shortages at the factories of Paterson which were forced to idle production in the summer season.

The bill was not successful, which was undoubtedly due in part to the widespread suspicion that the bill would grant powers to companies to export New Jersey water supplies to New York.  “[New York speculators] have been attracted by the magnificence and extent of New Jersey’s water-shed, and by the sweetness and purity of its waters.  Last year’s scheme was said to be intended to enable the tapping of New Jersey’s hills for the New York supply.”

Hobart was a resident of Paterson, New Jersey for most of his life. In 1885, Garret A. Hobart joined the Board of the Passaic Water Company and two years later was elected President of the Company.  Hobart was described in one source as representing a syndicate of New York capitalists. The company had been supplying Paterson and the surrounding area since 1857.

The East Jersey Water Company was formed on August 1, 1889 for the stated purpose of supplying Newark, New Jersey with a safe water supply.  All of the men who were shareholders of the new company (including Hobart) were identified with the Lehigh Valley Railroad Company. However, the company’s vision extended far beyond a water supply for Newark. The company began as a confidential syndicate composed of businessmen who were interested in executing grand plans for water supply in northern New Jersey and New York City. Nothing came of these grand plans.

For more, including omitted citations, see the blog.

A pollution market in history

I recently came across a 2014 dissertation by Krystal Tribbett, "RECLAIMing Air, Redefining Democracy: A History of the Regional Clean Air Incentives Market, Environmental Justice, and Risk, 1960 -- present". The abstract:

Depending on whom you ask, the Regional Clean Air Incentive Market (RECLAIM), the nation's first regional smog market, is either a revolutionary approach to cleaning the air of the South Coast Air Basin, the most polluted region in the country, or a failed social experiment that put the interests of business and the marketplace above public health. In its original iteration, RECLAIM rules were intended to produce emissions reductions consistent with the command-and-control approach to compliance embodied in an Air Quality Management Plan, but with greater efficiency, effectiveness, and flexibility—a goal RECLAIM in large part met. In an ideal application of emissions trading, public welfare and economic growth should have been jointly protected, and previous studies of RECLAIM have focused on the normative implications of the program, condemning suspected environmental injustices or praising economic efficiency without exploring the significant historical roots of market-based solutions. A closer look at these historical roots reveals the ways in which RECLAIM actually succeeded in improving air quality through difficult compromises and negotiations by regulators, environmental activists, politicians, and businesses.

This dissertation recounts this fuller history. It is about the history of market-based mechanisms to control air pollution in Southern California, and, in a broader sense, the history of neoliberalism and the process of neoliberalising nature. It traces the history of American air pollution laws from the 1960s to the present and finds a symbiotic relationship between federal and state governing bodies that led to the establishment of RECLAIM. The history told here shows that the development of RECLAIM was not wholly neoliberal, imposed intentionally by policymakers, venture capitalists, or academics with a neoliberal agenda. What emerged out of the archives and newspapers was a story of the organic evolution of markets to address air pollution that was shaped both by political processes and academic/theoretical arguments intended to find a compromise between public demands for clean air, political concern about economic growth, and industry pushback against regulation. This dissertation thus argues that in the United States neoliberal policies to govern nature are outcomes of struggles to balance societal values (like clean air) with political, economic, and scientific realities.

The common cup

The blog This Day in Water History notes that today is the 105th anniversary of the abolition of the "common cup" by New York State. The blog explains:

November 15, 1910:  New York Times headline—Would Abolish Common Cup. “Albany, Nov. 15—“There is no excuse for a public drinking cup, on the train or anywhere else, now that penny-in-the-slot machines serve out paper cups and that metal collapsible cups can be purchased for a dime,” says a circular sent out by the State Department of Health. The Health Department is co-operating with the railroads to do away with the public drinking cup on trains and in railroad stations. It is stated that there is great possibility of the transmission of disease by the use of the common drinking cup….”
Commentary:  On October 30, 2012, we observed the 100th anniversary of the first drinking water regulation, which was adopted by the U.S. Treasury Department that prohibited the use of the common drinking cup on interstate carriers. Individual states like New York and Kansas led the way by raising awareness of this serious public health problem. Seven articles in my blog safedrinkingwaterdotcom provided a countdown to the anniversary date.

Click through to the October 29 post for a more extensive history.

Race and pollution

Brittany Fremion recently reviewed Ellen Griffith Spears, Baptized in PCBs: Race, Pollution, and Justice in an All-American Town (UNC Press, 2014) for H-Environment. From the review:

Even though scholars and activists did not begin identifying environmental racism until the 1980s, Spears reveals how the unequal allocation of environmental hazards extends across space and time. In the first four chapters, Spears explains how Anniston became a model city of the New South and home to the chemical industry, which developed close ties to the US military during the two world wars. In doing so, she unpacks the problematic relationship between the former by explaining how a lack of regulatory oversight led to the tragic contamination of human bodies and ecosystems. As the Cold War escalated, so too did the military’s involvement with chemical development and production, which found a new home at Anniston’s Fort McClellan in the 1960s, “the free world’s largest training center for chemical, biological, and radiological warfare” (p. 94). By placing the modern environmental justice movement within this historical context, Spears is able to show the ways in which privileged toxic knowledge developed among corporations and created hazardous landscapes in Anniston that reflected the legacy of social and environmental disparities in the United States.

***** 

But Anniston’s residents were not passive victims. In chapter 5, Spears explores the tradition of nonviolent protest in the city to demonstrate that residents owed much to the civil rights movement, which shaped contemporary environmental justice campaigns by linking social justice to environmental issues. Prior to the campaign to hold Monsanto accountable for PCB contamination and the initiative for safe disposal of chemical weapons, Anniston attracted national attention with the burning of the Freedom Riders bus on Mother’s Day in 1961. White and black residents were versed in the language and experience of protest—be it in support of equality or not. Thus the Anniston campaigns also revealed important challenges created by racial and class differences: white middle-class and professional people dominated the anti-incinerator fight whereas the African American community spearheaded the PCB initiative, largely as a result of residential geography. When activists in both efforts joined forces, they did so uneasily. For instance, Spears reveals that the Monsanto campaign linked whites whose relatives and friends had been mid-century instigators of racial violence with residents of color who had sometimes been the targets of that violence. Despite these conflicts, legal victory over Monsanto and the emergence of a national campaign that forced the army to both provide residents with protective equipment and operate with greater transparency revealed the the power of grassroots activism.

In the remaining chapters, Spears explores the rise of PCB as the world’s most notorious chemical and the factors that drove chemical policy reform in the early 1970s, most important, the passage of the Toxic Substances Control Act, which led to the end of PCB production. But as Spears reveals, the aftermath of those reform efforts bred citizen action. In Anniston, Monsanto began burying its chemical wastes and the army announced plans to build a hazardous waste incinerator to dismantle outdated Cold War-era chemical weapons at the Anniston Army Depot. In the late 1980s people locally began to question those practices. Thus, a grassroots, cross-class, and ultimately biracial and bipartisan movement emerged to challenge environmental injustice—activists used coffins to block Monsanto’s bulldozers, staged die-ins, filed lawsuits, and donned hazmat suits at rallies. In her final chapter and epilogue, Spears offers an assessment of their achievements.

The environmental amendment to the Pennsylvania Constitution

The Environmental Law and Sustainability Center at Widener University recently hosted a talk by Franklin Kury on “The Environmental Amendment to the Pennsylvania Constitution: How It Came to Be and Where It is Going”. You can view the lecture here. The website explains:

Kury was elected to the Pennsylvania House of Representatives for three terms (1966–1972), where he was the author and lead advocate for the environmental rights amendment to the state constitution (Article I, Section 27).  In 1972, he was elected to the first of two terms in the Pennsylvania State Senate, where he became a leader in government reform. 

Nicholas A. Tonelli, Meander (Susquehanna River, Asylum Township)

Why tragic commons endure

Zachary Bray recently posted "Texas Groundwater and Tragically Stable 'Crossovers'", an article that raises an interesting theoretical question for legal-environmental history. The abstract:

One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes — systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some tragic commons regimes, they are almost self-evident.

Such persistent and obvious tragic commons regimes invite the obvious question: why do they endure? Some persistent tragic commons regimes are particularly puzzling in this respect, because at times they may appear to hesitate right on the verge of positive transformation, only to revert back to tragic stasis when apparent moments of change present themselves. In this Article, I claim that Texas groundwater law represents just such a persistent and puzzling tragic commons regime.

Recent literature has pointed out the ways in which tragically stable commons regimes can resist forces of change and emerging values from rival institutions and analogous commons contexts. In this Article, I pursue a related line of inquiry to examine a different and previously under-examined phenomenon. Using Texas groundwater as an example, I show how an internally dynamic commons regime on the cusp of positive change can be tragically stabilized by values and legal doctrines drawn from rival institutions and analogous commons contexts. I then argue that unless this tragic crossover is decisively broken, the law and institutions that govern Texas groundwater are likely to remain tragically stable.

[A Public Mineral Water Well], 1910, Boyce Ditto Public Library, Mineral Wells, Texas

Property in the Prussian forest

The recent issue of Environment and History had a review by Charles Closmann of Jeffrey K. Wilson, The German Forest: Nature, Identity, and the Contestation of a National Symbol, 1871-1914 (U. Toronto Press, 2012). After discussing the book's treatment of German cultural attitudes to the forest, Clossman writes:

Subsequent parts of the book examine debates about how to manage Germany’s forests. Drawing from minutes of the Prussian Landtag, Wilson shows how conservative landowners supported what they considered to be modern definitions of property rights in debates over an 1880 Prussian Forest Law. On the other side, left liberal critics supported the public’s traditional right to wander freely in the woods, collecting timber for fuel, gathering berries, and picking mushrooms. A subsequent chapter traces debates over Berlin’s Grünewald, with Wilson demonstrating again how left-liberal and some working class critics demanded that the Prussian state preserve a major forest in the city’s outskirts. In this case, enthusiasm for a beloved forest stemmed not from irrational anxiety about modernity, but in part from a desire to enhance recreational opportunities for the working class. Wilson notes, ‘The struggle to protect the Grünewald demonstrates the rational and progressive aspect of the forest discourse’ (p. 131).

Support for forest preservation also came from the state, for different motives. In chapter five, Wilson shows how Prussian state foresters attempted to restore the degraded forests of the Tuchel Heath, in the Prussian East. In this case, state officials intended to scientifically manage the region’s forests and to discipline what they saw as an ethnic Polish population desperately in need of German Kultur. A dramatic story of heroes, thieves and frustrated officials, the story of the Tuchel Heath is well-supported with documents from German and Polish sources, and with lively illustrations from Oskar von Riesenthal’s Bilder aus der Tucheler Heide. 

See here for an earlier article by Wilson on a similar subject. For more on German working-class environmentalism, see here.

State ownership of wildlife

A few months ago we noted some blog posts on the decision of the US Supreme Court in Horne v. Department of Agriculture, which seemed to seemed to revive the doctrine that wildlife is state property. Now there's an article: John Echeverria & Michael Blumm, "Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife". From the abstract:

In Horne v. Department of Agriculture, the Supreme Court expanded its so-called per se analysis under the Takings Clause to government actions impairing possession of personal property. The Court decided that a New Deal era agricultural program effected a taking by requiring raisin growers to turn over a portion of their crops in certain years to a governmental body that disposes of the raisins in noncompetitive markets. The raisin marketing program, which by law only persists with continuing support from the raisin industry itself, aims to control the market supply of raisins, and thereby elevate and stabilize the prices received by raisin growers. Despite the unusual character of the program, a majority of the Court ruled that certain dissident raisin growers were entitled to prevail on their theory that government "appropriations" of personal property interests in raisins were governed by the same per se takings rule that applies to government appropriations of real property.

***** 

The Horne decision did include an unexpected result of considerable benefit to government defendants, however: the Court distinguished the raisin marketing program from a similar program involving oysters that it upheld against a takings challenge in a 1929 decision. The Chief Justice explained that, unlike raisins, oysters were public property. The Court thereby ratified the venerable but somewhat misunderstood doctrine of sovereign ownership of wildlife. States employ this doctrine, inherited from England and nearly universally adopted by American states, to uphold wildlife conservation regulations and defeat claims of private ownership. Often referred to as the “wildlife trust,” the doctrine is the kind of “background principle” of property law that the Court recognized as defeating claims of takings in its 1992 decision of Lucas v. South Carolina Coastal Commission. 

In this article we examine the Horne decision in some detail. Although the case does extend the Court’s takings jurisprudence to an uncertain extent by applying the per se analysis to personal property, we think the long-term ramifications of the decision lie in the Court’s recognition of the sovereign ownership of wildlife. That doctrine not only will defeat private takings claims but should sanction affirmative regulation of wildlife and protection for its habitat, authorize government actions to recover damages against those harming wildlife and wildlife habitat, and reinforce public standing to enforce the wildlife trust.

Regulating Lake Tahoe

Jerry Frank recently reviewed Michael Makley's Saving Lake Tahoe: An Environmental History of a National Treasure (U. Nevada Press, 2014) for H-Environment. Frank writes that at the heart of the book lays the belief that “the lake’s heritage must take precedence over the unrestricted use of private and commercial properties” (p. 1):

The vast majority of the book offers a blow-by-blow account of the various attempts to manage a unique and highly desirable landscape that straddles two states and encompasses a complex bag of economic, legal, and environmental interests. The narrative focuses primarily on the 1969 creation of the first bistate regional agency—the Tahoe Regional Planning Agency (TARPA)—and the “innumerable problems” it has faced in attempting to manage this complex ecological resource (pp. 1, 3).

*****

The task at hand—balancing private property rights against environmental health of both common and shared resources—was exceedingly complex. And, as the author argues, the structure of TARPA has seldom been up to the challenge. Those in favor of economic development, including powerful casino interests, often controlled TARPA and pushed a pro-business agenda. This often pleased many, but not all, of the locals. Many concerned with the environmental health of the lake, including leadership of the Sierra Club and many elected officials from the state of California, were often at odds with further development around the lake and in favor of more stringent environmental protections. The difficulties in getting these interests to coordinate their efforts has led to a seemingly endless string of disputes, some of which have found their way to the Supreme Court.

There is much in Saving Lake Tahoe of value. It is certainly the most detailed look at the complex efforts to share this fragile and valuable resource. That said, there are deficiencies. Books that focus on policy issues must balance the details required to understand the fine points of the policy against providing a compelling narrative. In this instance, the complex history of TARPA combined with the author’s close personal connection to the material often makes it difficult for him to step away from the weeds and offer broader analysis of the proceedings. Had he used a stronger analytical frame he would likely have had more success in this regard. Arthur F. McEvoy’s The Fisherman's Problem: Ecology and Law in the California Fisheries (1986) comes immediately to mind. Lake Tahoe, which is both a private and common resource, presents a history of failed regulation. At the heart of that failure was the inability of a myriad of governing bodies to cooperate in such a way that management of the resource reflected the dynamic nature of the resource itself. Had the author engaged in a more rigorous way the deeper meaning and import of Tahoe’s history by engaging more of the historiography of resource regulation, Saving Lake Tahoe could have had a greater impact. Still, for those interested in the decades-long battles to save this incredible resource, Saving Lake Tahoe will be of value. 

Lake Constance fisheries

The latest Environment and History has an article by Michael Zeheter, "Order in the Lake: Managing the Sustainability of the Lake Constance Fisheries, 1350-1900". The abstract:

Around 1350 the authorities of the Lake Constance region began to regulate the local fisheries by issuing fishermen's ordinances and signing fisheries treaties with other principalities with the stated interest of protecting the fish stocks, which were considered a commons. The fishermen and their guilds were heavily involved in this process, since some of their practices - like the destruction of spawn and the catching of young fish - could have devastating consequences. The fishermen and their authorites decided regularly for more than four centuries to prioritise the long-term preservation of the fish stocks and not short-term profits to be made on the local fish markets. Thus, they avoided the disastrous outcome of a 'Tragedy of the Commons'.

Ludwig Hohlwein, Konstanz am Bodensee

Peter Sand on Karl Neumeyer as precursor of transnational environmental law

Alongside the thread on early environmental law courses, people have been wondering about the first environmental law textbook. Today Peter H. Sand, Lecturer in International Environmental Law at the University of Munich, joins us for a guest post on a contender for the title (see also his comment here). Peter writes [notes are after the jump]:

The history of international environmental law as an academic topic is generally associated with the emergence of treaties and case law on specific sectors such as shared watercourses, the oceans, or – from 1900 onwards – selected wildlife species. Doctrinal attempts at identifying common (trans-sectoral) elements, and a coherent discipline of international regulation and governance in this field, did not make their appearance until well into the second half of the 20^th century, with a prevailing and near-exclusive focus on public international law.

One notable exception was the pioneering work of Karl Alexander Neumeyer (1869-1941), who approached the subject from his distinct perspective of conflict of laws, in a monumental four-volume treatise titled Internationales Verwaltungsrecht (International Administrative Law, 1910-1936).[1] His life-time vision was the development of a new unified system of rules applicable to the transnational aspects of administrative law, to match the well-established conflict rules of private international law and procedure. And in the process, as part of an effort to demonstrate the pragmatic foundations of his approach in different sectors of public administration, he also assembled and analyzed a unique compendium of contemporary legal source materials that would indeed qualify today as typical ‘transnational environmental law’.

Chapter 8 in volume 2 of Neumeyer’s treatise (pp. 1-135), published in 1922, was headed Naturkräfte und Naturerzeugnisse (forces and products of nature). The first section, dealing with internationally shared water resources and water power, is based on the author’s earlier study of “water uses in international administrative law” (1915),[2] criticizing the rigid territorial sovereignty principle invoked by the Austrian Administrative High Court in the notorious 1913 Leitha River case,[3] and advocating the reciprocal protection of foreign legal interests along the lines of the 1909 US-Canadian Boundary Waters Treaty.[4] Other sections deal with the transboundary regulation of mineral resources; agriculture, forestry, hunting and fishing (based in part on the author’s early practical experience as law clerk at a district court in the Bavarian-Austrian border region); and the management and conservation of marine living resources, including a discussion of the 1893 Bering Sea fur seals arbitration.[5] Karl Neumeyer’s emphasis on the need for a mutual ‘other-regarding’ accommodation of foreign concerns, across the entire spectrum of nature-related topics, was way ahead of his times.

Neumeyer taught international law – with a focus on history and conflict of laws – at the University of Munich from 1901 onwards, until the Nazi regime forced him into retirement in 1934 because of his Jewish ancestry and barred him from continuing to work with the Hague Academy of International Law (where he had first lectured in 1923) and the Institut de Droit International (which had elected him to full membership in 1926).[6] Ultimately, when he was notified of the impending eviction from his house and the confiscation of his library, he and his wife decided to commit suicide on 16 July 1941.[7] There is a memorial tablet at their former home near the university; a Neumeyer-Strasse in the city; and in 2008, the Munich Law Faculty (whose dean he was in 1931-32) named the building that houses its Institute of International Law (which he had helped to create) in Karl Neumeyer’s honor and memory. 

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

William Colby, first environmental law prof?

Ansel Adams, William E. Colby (from Carl P. Russell, One Hundred Years in Yosemite (1947))

In a new twist on the search for the first environmental law course, Dan Farber at Legal Planet says he has identified the first environmentalist law teacher:

I’m pretty sure that William E. Colby (1870-1964) qualifies as the nation’s first environmentalist law teacher, if only because environmentalism was very young at the time..  Colby was a lecturer on mining law and water law at Berkeley for twenty-one years, retiring in 1936.  (That doesn’t make him the first natural resources teacher;  Judge Lindley had taught mining and water law before him.) Colby was a close friend of John Muir. He joined the Sierra Club in 1898 and, except for two years, was the Secretary of the Sierra Club from 1900 to 1946.  The Sierra Club credits him with contributing substantially to saving redwoods, enlarging Sequoia National Park, and establishing Kings Canyon and Olympic national parks.  He was also the first Chair of the California State Parks Commission.

I was originally going to call Colby the first “environmental law” professor, but it’s not clear how much his environmental concerns entered into his teaching or scholarship about environmental law.  Even then, the environmental impacts of mining were not unknown or without a legal dimension: a federal judge in the Nineteenth Century had halted hydraulic mining in California because of its devastating impacts on the state’s rivers.  His Sierra Club bio does link his legal and environmental work, saying that his”notable eminence as an attorney who specialized in mining and water law . . . . served him well in his conservation work.”  He did represent environmental interests in a couple of cases.

At the outset, I called Colby the nation’s first environmentalist law professor.  Obviously, I’d be very interested to learn if there were others from the era, but I’m guessing the title will stand.  (I’d also love to hear from anyone who knows more about Colby). Either way, it’s nice to know that law teachers became involved in environmental issues at such an early stage.

Moral and environmental pollution

Front cover for a booklet advertising tablets for coughs and colds brought on by smog (1913) (Wellcome Library)

Not long ago the occasion of the Jewish new year gave me cause to write on the connection between moral and environmental catastrophe. Brett Beasley recently came at the topic from another historical angle in the Public Domain Review, in "Bad Air: Pollution, Sin, and Science Fiction in William Delisle Hay’s The Doom of the Great City (1880)". Beasley writes that Hay's book "imagines the entire population of London choked to death under a soot-filled fog. The story is told by the event’s lone survivor sixty years later as he recalls 'the greatest calamity that perhaps this earth has ever witnessed' at what was, for Hay’s first readers, the distant future date of 1942." He goes on:

Before we canonize Hay as an environmentalist and his story as An Inconvenient Truth in Victorian garb, we have to look at the story’s other features. Readers of The Doom of the Great City unfailingly notice that the story does not fit easily with other science fiction narratives, but seems to belong also to another class of tales, which Brian Stableford has called “ringing accounts of richly deserved punishment”. This is because Hay’s narrator seems to slide back and forth between material and moral explanations for pollution. While he talks of how “In those latter days there had been past years of terribly bad weather, destroying harvests”, he adds in the same paragraph, “prostitution flourished rampantly, while Chastity laid down her head and died! Evil! — one seemed to see it everywhere!”

Oil and gas interests, government, and legal scholarship

Over on Jotwell, Ezra Rosser recently gave a glowing review to Oliver Houck's recent article, "The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone", writing that it "is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty". There's no abstract for the article, but I'll quote at length from the review, which not only outlines the environmental-legal-historical argument, but also has some valuable thoughts on legal scholarship:

Sam Kittner, State Capitol of La. and Exxon Explosion, December 24, 1989 (LOC)

Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction.

Tamara Lotner Lev, a doctoral student writing (under my supervision) on environmental regulation of offshore oil and gas drilling, has come to a similar conclusion about the role of Israeli regulators, calling it "reverse capture".

Rosser also sees Houck's article as a model piece of scholarship:

Public and private rights in waterways

I recently came across Maureen Brady's "Defining 'Navigability': Balancing State-Court Flexibility and Private Rights in Waterways". First the abstract:

Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be “navigable” makes it public property, while declaring it “non-navigable” leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups.

The scope of this authority to make navigability doctrine — especially whether it gives state judges the ability to change the definition of “navigability” once declared — is unclear. Current law fails to curb abuses of navigability doctrine and pays scant attention to constitutionally protected property rights. These issues are particularly salient today: prompted by large-scale water diversions, droughts, and fears of water shortages, twenty-first century litigants wishing to prevent water privatization are increasingly seeking new judicial declarations of “navigable” waterways.

This Article provides an original history and analysis of state-law navigability doctrine and the limitations that should be implemented. First, it shows how this unusual common-law authority was created and how state courts exercised it in two moments in history when water rights became vitally important: the explosion of American development in the mid-nineteenth century and the rise of the environmental movement in the mid-twentieth century. Building on this history, this Article argues that to avoid abuses while permitting reasonable exercises of judicial power, navigability must be viewed through a national constitutional lens. The Takings Clause and Due Process Clause — independently or in combination — can provide guidelines that permit evolution while safeguarding individual rights.

I'm not sure about this last part - how can we know if property was taken without reference to state court decisions about the limits of private rights? The history of expansive definitions of navigability is a long one, outside the US as well.

For more on public rights in navigable streams, see here and here.