From rules of general application to regulatory regimes in international law

Jaye Ellis recently posted "Form Meets Function: The Culture of Formalism and International Environmental Regimes". This highly theoretical piece has a brief historical argument, as well, which I'll excerpt here. The contents of the footnotes in the original appear here in brackets:

A formalist approach exercised influence in international environmental law until perhaps the late 1980s or early 1990s, during which time authors relied heavily on both public international law and private law within municipal systems in their attempts to articulate potential future directions for international environmental law. [International environmental literature from the 1960s-80s is replete with the articulation of rules of general application, anchored in public international law and in private municipal law. See, for example, G. Handl, ‘Liability as an Obligation established by a Primary Rule of International Law: Some Basic Reflections on the International Law Commission’s Work’ 16(1) (1985) Netherlands Yearbook of International Law 49-79; C.W. Jenks, ‘Liability for Ultra-hazardous Activities in International Law’ 117 (1966) Recueil de cours de l’Académie de droit international 99-198; L.F.E. Goldie, ‘Liability for Damage and the Progressive Development of International Law’ 14 (1966) International and Comparative Law Quarterly 1189-1264; L.F.E. Goldie, ‘Concepts of Strict and Absolute Liability and the Ranking of Liability in terms of Relative Exposure to Risk’ 16 (1985) Netherlands Yearbook of International Law 175-248; P.-M. Dupuy, ‘Due Diligence in the International Law of Liability’ in OECD (ed), Legal Aspects of Transfrontier Pollution (Paris: OECD Publications, 1977) p. 369. Most academics lost interest in these questions around the time of the 1992 Summit on Environment and Development; fortunately, there are some important exceptions, including A. Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?’ 39 (1990) International and Comparative Law Quarterly 1-26; J. Barboza, The Environment, Risk and Liability in International Law (Leiden; Boston: Martinus Nijhoff, 2011); X. Hanqin, Transboundary Damage in International Law (Cambridge University Press, 2003). This literature is canvassed in J. Ellis, ‘Liability for International Environmental Harm’ (2013) Oxford Bibliographies Online - International Law.]

A trend away from such an approach and towards the construction of regulatory regimes became apparent in the late 1980s and seems to have been well established by the time of the second earth summit in Rio de Janeiro, Brazil, in 1992. [This trend can be illustrated by the trajectory of the regime to regulate ozone-depleting substances: the framework Vienna Convention for the Protection of the Ozone Layer was adopted in 1985 and entered into force in 1988. The Montréal Protocol on Substances that deplete the Ozone Layer was adopted in 1987 and entered into force in 1989. The Montréal Protocol was an innovative instrument, featuring schedules for the elimination of ozone-depleting substances (arts 2A-I) and a flexible amendment procedure that permitted both the expansion of lists of substances subject to regulation and the acceleration of phase-out schedules (art. 11 and Rules of Procedure for Meetings of the Parties to the Montréal Protocol, Decision I/1 of the Meeting of the Parties to the Montréal Protocol (MOP), contained in Annex I to the Report of the First Meeting of the Parties, Helsinki 1989). The famous and highly innovative Non-compliance Procedure was adopted by II/5 of the MOP, contained in Annex III of the Report of the Second Meeting of the Parties, London, 1990. The ozone depleting regime contains many features that came routinely to be incorporated in other multilateral environmental agreements, including robust reporting requirements, panels tasked with researching and reporting on various technical, technological, and scientific issues, and financial mechanisms for the provision of assistance to states, notably developing states, that required assistance in meeting their obligations under the regime. Not all of these features were innovations at the time of the adoption of the Montréal Protocol, of course, but this regime was a pioneer in the manner in which it brought together a wide range of mechanisms and procedures in a complex regulatory regime.]

Farming, antislavery politics, and nature parks

The latest Environmental History has a book review by Timothy Johnson of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press, 2015). Johnson writes:

In a new study that traces the relationship between land use and politics not in the South, but in the North, Adam Wesley Dean sets out to challenge the common notion that the war was a conflict between an urban, industrial North and an agrarian South. To do so, Dean looks to the ideology of the Republican Party. The author argues that Republican ideology was “fundamentally agrarian” and shaped by “an environmental understanding of social development” (pp. 2–3). Dean convincingly demonstrates how beliefs about the tenuous relationship between soil and civilization were at the heart of the Grand Old Party’s ideology.....

The first three chapters follow the strand of agrarian thought in American politics from the Northwest Ordinance through the landmark wartime legislation of the Homestead Act, the Morrill Act, and the Pacific Railroad Act. Dean argues that Republicans defined themselves in opposition to the extensive agriculture of the South, where observers like Frederick Law Olmstead cited soil erosion as physical evidence of the moral decay inflicted by slavery. But Dean goes beyond the North-South dichotomy and also moves along the East-West axis to triangulate the centrality of land use to Republican discourse....

The final two chapters take an abrupt turn to postwar debates about park creation in Yosemite and Yellowstone, and then to settlement policies in the South and among Native Americans out West. While these subjects might seem like a detour from earlier chapters, they lead to the book’s most original contributions. One of the more surprising findings relates to the creation of national parks. The conservation question drove a wedge within the party between those who believed that natural beauty could nourish republican virtues and old Free-Soilers who believed that all land—even Yosemite and Yellowstone—should be divided into small farms. The final chapter examines how agrarian thought shaped policy intended to bring freed people and Natives Americans into the national fold after the war. Some readers might take issue with the provocative claim that Republicans “had an environmental view of citizenship,” but Dean makes a strong case that the ideology of soil and civilization hewn in the congressional turmoil in the 1850s helped structure postwar Republican policies in distant regions, long after war’s end (p. 136). 

Spirit over the waters

Chicago Sanitary & Ship Canal, original Lockport Lock (American Canal Society)

I recently came across Paul Janicke's website Spirit Over the Waters, which contains libraries of cases having to do with the Lake Michigan water diversion controversies (1900-present) and related patent infringement controversies on wastewater treatment (1914-1947). The site explains the first set of cases:

Twenty percent of the world’s fresh water in the world is in the Great Lakes. That water has drawn significant interstate controversies for over 100 years. States have had recourseto the Supreme Court seven times, testing what a state can or cannot do with the water of Lake Michigan. The most important of the cases, the one between Illinois and the other lake-bordering states, was filed in 1922 and is still open today. The central issue has been the withdrawal by Illinois of significant quantities of Lake Michigan water to use as flush water for Chicago’s human and industrial wastes, sending them westward into the Mississippi .Other issues evolved as well. 

The Supreme Court has been the main decider.

In most instances of controversy the Supreme Court appointed a special master to gather the evidence and recommend resolution. The Court’s decision in each instance is readily available, but none of the underlying masters’ reports and related briefing are in the Court’s records today. For this library all the special masters’ reports, and much of the states’ briefing, has been recovered, along with significant evidentiary and background materials. It is hoped that scholars and members of the public will find this long story pertinent to contemporary discussions regarding water supply in an era of major droughts in many parts of the country.

And the second:

Fighting Westway

The latest Environmental History has a review by Sarah Elkind of William Buzbee's Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City (Cornell UP, 2014). Elkind writes:

In 1973 portions of an elevated highway on Manhattan’s West Side collapsed. A powerful coalition of local business, real estate, and government leaders proposed Westway, a four-mile long, six-lane, underground highway, built entirely on landfill. The project included parks and new space for real estate development; federal highway funds would pay 90 percent of construction costs. But Westway was never built. The Army Corps of Engineers approved landfill for Westway but only after ignoring evidence that Westway would devastate Hudson River striped bass. In 1985 after a federal court excoriated the Army Corps and enjoined the landfill, New York City officials “traded in” the proposed highway for a modest surface road, riverside bike path, and over a billion dollars for mass transit. In New York, Westway remains a symbol of antidemocratic overreach (for opponents) or excessive regulation (for proponents). As environmental history, the “regulatory war” over Westway reveals how the Clean Water Act (CWA), Clean Air Act (CAA) and National Environmental Protection Act (NEPA) transformed regulatory and environmental politics in the late twentieth century.

*****

When the New York State Urban Development Corporation proposed Westway, most New Yorkers assumed that the shallow waters slated for landfill were a biological wasteland. The Army Corps of Engineers’ first draft Environmental Impact Statement (EIS) on Westway landfill concluded that the area was so polluted that filling it would have no negative ecological consequences. The Environmental Protection Agency and other natural resource offices contested this, but the 1977 final EIS asserted the biological wasteland theory even more strongly. When a storm of protest forced the Army Corps to reexamine the ecology of the areas slated for landfill, preliminary results showed that these areas were vitally important habitat for young striped bass. The Army Corps cut the fish survey short and granted the permit for Westway landfill in violation of the CWA. Opponents sued. Court testimony revealed that the Army Corps manipulated and ignored the results of fish studies, and made no effort to explain why their final EIS insisted that Westway would have no adverse effects when the evidence clearly showed it would.

Buzbee provides an excellent explanation of regulatory processes and the limitations of both the CAA and NEPA. He explains “regulatory war,” court procedures, legal standing, the requirements and strengths of specific environmental regulations, and other critical features of environmental policymaking. His biographies of key players demonstrate how expertise and political connections contributed to the Westway controversy. But the real heart of the book is Buzbee’s able and compelling explanation of the legal strategy, evidence, and reasoning behind the Westway verdicts. So the Westway story is a sound case study of the impact of local priorities on federal policies, and environmental regulations on federal agencies like the Army Corps. Buzbee does engage opponents’ arguments and strategy with more nuance and detail than he does Westway’s supporters. His insistence that the outcome was not inevitable does not seem all that important in the face of this careful legal and regulatory history. These are small faults in a very interesting book that is exceptionally well suited to undergraduate courses on environmental law and politics. Fighting Westway may not do precisely what Buzbee says it does, but it will give readers a clear understanding of how regulations work, how government institutions interact, and why it can be so difficult to stop a big project once it is underway. 

The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Update: the published papers from this conference are available here

A call for papers for a conference and journal issue I'm organizing, with the help of my distinguished teacher, Carol Rose. Please pass it on!

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50^th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law

with the support of

David Berg Foundation Institute for Law and History

GlobalTrust: Sovereigns as Trustees of Humanity

S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law

Tel Aviv University

June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 

One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

Accommodations in Tel Aviv will be provided by TAU, and participants will have their reasonable travel expenses reimbursed.

Timing:

• One-page abstracts accompanied by a brief c.v. should be sent to cegla@post.tau.ac.il by 1 March 2016.
• Notices of acceptance will be sent by 1 April 2016.
• In order to allow pre-circulation and preparation of comments, draft articles will be due by the end of May 2017.
• The conference will take place in Tel Aviv June 28-30, 2017.
• Final drafts will be due by the end of August 2017.
• After peer review and editing, the special issue of Theoretical Inquiries in Law will be published in July 2018.

Nahalal collective village, Israel (c. 1930?)

In the History Carnival

This month's History Carnival, hosted by "Art and Architecture, mainly", featured, among an amazing variety of history blogs, Mark Weiner's post on Austrian law and landscape, and my own series on art and the history of environmental law.

Also check out the post on the current Israel Museum exhibit, "Twilight over Berlin: Masterworks from the Nationalgalerie 1905-1945" (and visit the exhibit if you can).

George Grosz, Grey Day, 1921

The Colorado Doctrine in business history

I'm pleased that my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012) continues to get reviewed. The latest is one by Todd Holmes in Business History Review. Holmes sums up the book well:

The book begins with an in-depth investigation of the mining laws that emerged in the Colorado territory following the 1859 discovery of gold. Here Schorr sets an impressive tone for the following chapters, as he seamlessly interweaves his legal and historical training in research and analysis. Drawing on ninety-one mining codes from seventy-eight districts, Schorr demonstrates how the principle of equality, modified by the rule of sufficiency, limited mining claims in both size and ownership. And as he shows, this Lockean principle of equal access soon spread from land to water. From Colorado's territorial laws and constitution to the 1882 Coffin decision that etched the young state into legal history, the water monopoly bestowed in common law to riparian lands was consistently undercut and, ultimately, abolished in favor of the broader distribution achieved through the system of prior appropriation (first in time, first in right). In the final two chapters, Schorr charts how the principle of distributive justice continued to influence Colorado's water laws in the decades that followed; in the process, he squarely challenges the varying interpretations of corporate greed and market efficiency often ascribed to the law of appropriation. Contrary to Gilded Age stereotypes of corporations running amok in the West, Colorado courts consistently ruled in favor of small farmers and placed heavy restrictions on the size, access, and contracts of irrigation companies. Such efforts of fair distribution, however, did not make for efficient markets—a fact that Schorr details in his chapter on the beneficial use clause and the diminishing productivity inherent in its restriction on water right transfers.

A couple of the earlier reviews were covered here and here; Google Scholar has links to a lot more.