Early environmental law treatises

Ads from the first edition of Charles James Tarring's Chapters on the Law Relating to the Colonies (London: Stevens and Haynes, 1882, courtesy of The Making of Modern Law):

My favorite blurb: On Moore's work on the rights of the crown in the seashore: "The book should certainly find a place in the library of the lord of every riparian manor." (Morning Post)

FDR and environmental law

I've long thought that the New Deal era doesn't get its rightful due as a critical phase in the history of environmental law. It seems Douglas Brinkley's new book, Rightful Heritage: Franklin D. Roosevelt and the Land of America (Harper Collins, 2016), makes a similar argument. As one would expect for a Brinkley book, it's already been reviewed by the New York Times and Washington Post.

Clay Risen in the Times puts the emphasis on the supposed tension between environmental protection and economic growth. Dennis Drabelle in the Post is a little more sensitive to legal history, writing that "Brinkley can be superficial when it comes to legal issues — it’s not always clear what authority FDR is drawing on when he takes a pro-environmental stance". Drabelle writes of the Duck Stamp Act:

Brinkley is good at showing how strands of Roosevelt’s life united to shape approaches to preservation that other presidents might have missed. Take an idea to raise money for waterfowl conservation which had been working its way through Congress. It culminated in the Duck Stamp Act of 1934, which requires all waterfowl hunters over 16 to buy, in addition to a state hunting license, a federal stamp, the proceeds from which go to acquiring wetlands and funding wildlife refuges. As a lifelong philatelist, Roosevelt “loved stamps too much to allow each year’s duck issue to be anything but irresistible.”

Roosevelt was a great believer in bipartisanship, and the director of what was then the Biological Survey in the Agriculture Department (now the U.S. Fish and Wildlife Service in the Interior Department) was Jay Norwood “Ding” Darling, a Republican who, in his previous job as a Pulitzer Prize-winning editorial cartoonist, lampooned the Democratic president repeatedly. At FDR’s request, Darling designed the first duck stamp, featuring “two striking mallards in flight descending on a lake.” From this literally splashy beginning evolved a much-anticipated annual contest — still being held — in which wildlife artists vie to submit the winning design (and to rake in the income generated by fans who buy reproductions). In addition to excitement and artistry, the program has generated more than $500 million through 2009, which has been used to purchase 5 million acres of waterfowl habitat.

The Duck Stamo program is still running. For all the stamps, see here.

Toxic injustice

The recent Environmental History has a review by David Stradling of Susan Rankin Bohme's Toxic Injustice: A Transnational History of Exposure and Struggle (UC Press, 2014). Stradling writes:

Environmental historians will be especially interested in the first two chapters, in which Bohme describes the development of the nematode problem and the chemical companies’ marketing of DBCP. Bohme describes, in great detail, how Dow and Shell manipulated the regulatory process that developed warning labels and guidelines for use but ultimately “projected a false image of DBCP’s safety”. What’s worse, most of the science came from laboratory tests on animals, which clearly indicated problems regarding sterility, but Shell decided to make health claims based on incomplete worker health data instead. The early chapters also describe well the transnational banana and chemical markets, and the limits of US regulation, which sought to protect American consumers but failed to protect foreign workers, even from threats that came from inside the United States.

These workers, the afectados who suffered health consequences and sought justice in court, are at the heart of the book. Bohme has employed the rich detail of legal documents generated by workers who sued in Texas courts for compensation for sterility caused by DBCP exposure on banana plantations in Costa Rica and Nicaragua. Exploited in the fields, these workers were not well served by the courts, suffering from translation problems, in which workers were doubly disadvantaged, as English was translated to Spanish and legalese was translated into layperson’s terms. The workers also suffered from location problems, as they sought justice in American courts, largely because they (and their lawyers) could expect a larger settlement in the United States.

While this is a truly transnational story, involving major corporations and court systems from several nations, as well as the international movement of goods and money, Bohme concludes that the outcome confirms the continuing importance of the state in our neoliberal age. The state remains the essential site of regulation and the arbitration of justice. The other arguments of the book are well anticipated: inequalities of power and knowledge left workers exposed. They were clearly exploited by their employers and by the companies that produced and sold chemicals that they knew to be health hazards. And later, after the lawsuits began to accumulate, the US judicial system seemed more concerned with protecting American corporations than in finding justice for those who were harmed. After a very long process many workers won modest settlements, but Bohme concludes, “The same deep and broad inequalities that shaped the contours of DBCP exposure also limited afectados’ success in holding corporations accountable”.

The Storm King controversy

The recent Environmental History has a review by Ted Steinberg of Robert Lifset's Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (U Pittsburgh Press, 2014). Steinberg writes:

Con Ed seemed to be cruising toward its goal of building the plant when Scenic Hudson, an environmental group formed in 1963 to stop the project, began reckoning with the full ecological impact of the hydroelectric plant. Writer Robert Boyle had discovered that the Hudson River was alive with marine life. Boyle equated the prospect of licensing a plant in the Storm King area with the thought of slaughtering sheep in his own living room. The idea was slowly dawning on environmentalists that the hydroelectric plant would doom the river’s population of striped bass. Lifset argues that the introduction of ecological issues transformed the environmental movement in the Hudson Valley and helped lay the groundwork for its ultimate success.

This increased focus on ecology alone would never have led to the demise of Con Ed’s plans were it not for an equally important turn in the law that Lifset also explores in his book. In 1965 a federal appeals court ruled that Scenic Hudson was an aggrieved party and had the legal standing to launch a challenge to the Federal Power Commission with respect to Storm King. The decision reprimanded the power commission for failing to create an adequate evidentiary record, thereby foretokening the later implementation of environmental impact statements.

*****

Lifset offers a solid work of history that draws attention to the role of both ecological and energy issues in shaping environmentalism. His focus on legal change is also a welcome addition for those seeking a fuller understanding of the environmental movement. 

Sir Matthew Hale and the moral law of stewardship

Today we're fortunate to have an interesting guest post from Erin Drew, of the University of Mississippi English department:

Sir Matthew Hale is frequently credited with a key role in establishing the public trust doctrine in modern environmental law—a claim that has been contested by multiple scholars on the basis of both the legal relevance to American law and whether his claims for public rights in De Jure Maris can be taken as a statement of public trust at all. Whatever Hale’s relationship to public trust doctrine as a principle of law, however, his religious writings show that he relied upon legal metaphors of trusts and stewardship as the basis for moral arguments for the human obligation to care for their environment. References to human stewardship were not uncommon in religious writing of the seventeenth and eighteenth centuries, but Hale elaborates on the moral implications of the steward’s fiduciary role in a more extensive and legally detailed way than most, emphasizing the human obligation to account to the proprietary “lord,” God, for the responsible and proper use of that which has been entrusted to them.

In a chapter in his posthumously published Contemplations Moral and Divine entitled “The Great Audit, with the Account of the Good Steward,” Hale uses the Book of Matthew’s parable of the talents to imagine God calling humans to “account” for their use of the “blessings and talents” that God “committed to [their] trust and stewardship, to manage … for they ends they were given.” While the “blessings and talents” Hale discusses are broad and comprehensive, he gives special attention to the implications of human beings’ “stewardship” of creation for their duties to nonhuman creatures. In the section subtitled “Touching Thy Creatures,” Hale writes: “I received and used thy creatures as committed to me under a Trust, and as a Steward and Accomptent for them; and therefore I was always careful to use them according to those Limits, and in order for those Ends, for which thou didst commit them to me.” Hale frames the “Limits” to human control in terms of justice: God “has given us a Dominion over thy Creatures, yet it is under a Law of Justice, Prudence, and Moderation; otherwise we should become Tyrants, not Lords.” That “Law of Justice” requires using the nonhuman world with “Temperance and Moderation,” for the “Support of the Exigencies” of human life, yet with “Mercy and Compassion” for the “Powers of Life and Sense” which non-humans possess. To fail in either temperance or compassion would constitute a “Breach of that Trust under which the Dominion of the Creatures was committed to us, and a Breach of that Justice that is due from Men … to be merciful to [their] Beasts.” Cruelty and mistreatment of other creatures is therefore “a Tyranny inconsistent with the Trust and Stewardship that thou [God] has committed” to humans.

Thus Hale imagines a contractual relationship existing among God, humans, and non-humans, making humans morally responsible for the well-being of present and future generations of beings. Though Hale, like any contemporary moralist, stresses the sinfulness of the “Luxury and Excess … Lusts … vain Glory or Ostentation” that spur humans to mistreat and misuse the non-human creatures in their power, for him the fundamental sin is the violation of man’s fiduciary duties as God’s steward. Thus using creatures to excess is not simply a sin of personal gluttony. It breaks the terms under which God granted humans their limited dominion, by (in this case, literally) eating into God’s resources: whenever eating or drinking, Hale says, “I checked myself, … still remembered I had thy Creatures under an Accompt; and was ever careful to avoid excess or Intemperance, because every excessive Cup and Meal was in Danger to leave me somewhat Insuper and Arrear to my Lord.” The sin of mis- or over-use of God’s creatures, for Hale, lies in the violation of the contract between man and God to care for his creation according to the stipulated terms, and the failure to maintain God’s creation as a steward ought, by taking more from it than can be sustained. Hale believes the power granted to humans as the stewards of the world to be by its very nature subject to a law whose primary purpose is to ensure that justice and happiness is, overall, extended to each creature. That is, after all, the rationale that licenses human sovereignty over the world: that they maintain God’s ideal balance among the competing needs of various creatures for the optimal happiness of all. Only by justly fulfilling the duties laid out for them by God can humans legitimately claim “dominion” over the nonhuman world.

It makes sense for Hale to rely on the language of law and justice to reinforce moral obligations, since as biographer Alan Cromartie points out, Hale’s legal philosophy was based upon the premise of a legislating God who was “the basis of all natural moral knowledge,” as well as the premise that “the rule that all contracts should be kept was much the most important natural law.” In this, Hale was a part of a longstanding tradition of contractarian natural law, which drew moral principles from the nature of the fundamental contract between God the creator and his creations. Not all those who shared Hale’s belief that human beings were the trustees and stewards of God’s gifts extended their obligations to nonhuman creatures, but there is reason to believe that his opinions on that subject had a long and lasting influence on English morality, if not law: “The Great Audit” was excerpted, condensed, and reprinted regularly as a pamphlet from the 1690s to the 1790s, and the sub-section “Touching Thy Creatures” was the longest of the eight sub-sections included in those condensed editions, taking up five of a total of around twenty-five pages.

Water law, Ibsen, and Flint, Michigan

Jim Salzman recently posted "Lessons from Flint" at Legal Planet, giving us some historical (and literary) perspective. An excerpt:

A public-minded researcher discovers serious contamination of drinking water. His efforts to alert local officials are rebuffed. Concerned over how this will affect their reputation and the town’s economy, the authorities sit on the evidence and deny any problems. All the while, trusting people continue to drink unsafe water.

While the setting may call to mind recent events in Flint, Michigan, this is actually the plot from Henrik Ibsen’s classic 1882 play, An Enemy of the People. The places and dates have changed, but the challenges of providing drinking water remain. Just how safe really is our water and how can we make it safer?

Édouard Vuillard, An Enemy of the People, program for Théâtre de l'Œuvre, November 1893

We marked the fortieth anniversary of the Safe Drinking Water Act in 2014. In many respects, it was a date well worth celebrating. Most Americans take tap water for granted. We enjoy some of the safest and most reliable drinking water in the world. More than 90 percent of customers receive water that meets all standards all the time. This is a far cry from a century ago, when waterborne illnesses and deaths were commonplace. The famed aviator brother, Wilbur Wright, died of typhoid in 1914. The 1916 polio epidemic required quarantines in New York City, where 9,000 cases were reported. Today, these and other waterborne diseases have virtually disappeared in America. Glass half full.

Yet the glass remains half empty. Just ask the residents in Charlestown, West Virginia, where two years ago a chemical spill shut down water supplies, or in Toledo, Ohio, where seven months later an algal bloom closed their water system. The threats in those cases were due to causes beyond the reach of the Safe Drinking Water Act – a breach in a chemical storage tank atop a river bank in Charlestown, and excessive nutrients from agriculture flowing into Lake Erie in Toledo. These incidents made clear that action to ensure safe drinking water needs to start well upstream of the water treatment plant.

CFP: Environment and law in Haiti

LeGrace Benson of the Haitian Studies Association sends the following call for papers:

The Haitian Studies Association announces 

Haiti's Eco-systems: Focus on Environmental Realities and Hopes

This multi-disciplinary conference hopes to to receive proposals for panels centered on issues of environmental law as effecting Haiti and on the environmental history of Haiti. For a full description of the conference and the detailed call for papers see here.

A River Runs Through It

[A new post from Mark Weiner. His previous post on this blog about Austrian law and landscape is here.]

My new video is about water, water law, Austrian identity, legal philosophy, concepts of the state, ideas of the public, approaches to time and tradition, metaphor, and some great old books. Plus, there’s a cameo appearance by a sweet Alpine cow:

The film is divided into two parts, held together within a single narrative frame: a day spent driving around beautiful Salzburg with a charismatic young legal scholar, Florian Lehne, who was eager to show off his country’s watery environment.

The first part of the film considers some of the ways Austrian law regulates water in a characteristically Austrian way—which is to say by vindicating the public interest and resisting market liberalization through strong assertions of state administrative authority. This part is centered around my trip with Florian.

The second part of the film meditates on Hans Kelsen’s pure theory of law, which in its strict formalism seeks to divorce conceptions of law and the state from politics. This part includes footage of Florian and a group of both young and well-established legal scholars from the University of Salzburg, the University of Vienna, and the University of Graz.

The division of the film into two parts serves a conceptual and methodological purpose, as well as a substantive one. Conceptually, it’s meant to underscore that different and sometimes divergent aspects of the same legal system can be connected by an underlying symbolic structure whose study is essential for understanding both the legal system’s details and larger issues of legal-cultural identity. Influenced by the work of Clifford Geertz in anthropology, I’ve explored this idea in a variety of ways since my first book, Black Trials, which sought to put that theory into practice through the techniques of literary-historical narrative. Film provides another method for pursuing this goal.

The film isn’t an illustrated lecture, and its purpose isn’t to make an analytic argument. Film makes its meaning through visual gestures and accompanying music and sound. But I’d like to note something about the origin of the film’s main idea: that post-war Austrian identity rests on an ideal of the public interest embodied in elite managerial institutions, and that this ideal represents a curious echo of monarchy within a modern social democratic state.

It isn’t surprising that this structure of thinking and identity should be reflected in water law. The beauty of the Austrian environment is one of the essential foundations of the modern Austrian sense of national self—the Austrian “brand,” both internally and externally, is as the land of mountains and Mozart. Austrians constructed this national self-understanding in significant part after World War II as part of an effort to differentiate their country from Germany. And since the 1970s it has been essential to the country’s economic health, which rests significantly on tourism.

Austrians have protected this cultural resource by nurturing the view that strong government authority is integral to their political community. It’s for this reason that environmental law, the individual experience of water, constitutional jurisprudence, and the individual experience of government all share a common symbolic structure—and that this structure can be captured in film.

A final word for the technically-oriented readers of this blog. The film was shot on a Panasonic Lumix GH4 at 25 fps—that’s to keep images under European PAL lights from flickering—a hard lesson learned a couple years back after I shot 24 fps under fluorescent bulbs in university offices). The audio was recorded internally with a small, expensive Senheiser shotgun mic and a rudimentary lav. A few clips also were shot with my iPhone, in NTSC rates. Most of the shots are hand-held, including the pans, and were steadied in post, though the interviews use a tripod. I edited with a MacBook Pro using Adobe Premier Pro, After Effects, and a smattering of Audition. When the film comes together, I’ll be relying on Audition and Speedgrade for the finishing touches.  As with the video I posted back in January, this is do-it-yourself, micro-budget filmmaking, which I hope gives it a distinctive feel and perspective.