A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):

A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))

Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:

To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.

And on June 18, Lord Faulks answered:

The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.

At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Environmental history in oral arguments

Brian Tomasovic recently posted the abstract for his article "Soundscape History and Environmental Law in the Supreme Court", published last year in Environmental Law. The abstract:

Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.

Tomasovic explains that argument audio hosted on the Supreme Court’s website presently begins with the October 2010 Term, while recordings going back to 1955 are at the Oyez website. The article's Appendix B "compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake", and also "labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case".

Is this resource important? Tomasovic thinks so; here are some highlights from my perspective (footnotes omitted). I'll start with his treatment of environmental history as reflected in the recordings:

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)

Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:

At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”

Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:

The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying....

Environmental regulation in colonial Zimbabwe

The latest Environment and History has an article by Muchaparara Musemwa, "Sic utere tuo ut alienam non laedas. From Wanton Destruction of Timber Forests to Environmentalism: The Rise of Colonial Environmental and 'Sustainability' Practices in Colonial Zimbabwe, 1938-1961". The abstract:

This article examines the roots of colonial Zimbabwe’s culture of environmentalism – described, here, as increasing social awareness of the rapid deterioration of the environment and the pressing need to take decisive action to counteract it. It argues that only a one-sided story – namely colonial conservationist discourses and practices especially as they pertained to African reserves in colonial Zimbabwe and other parts of Southern and Eastern Africa – has been the object of myriad historical analyses. Yet, there is a corresponding story that seems to have fallen between the seams of history as it is rarely articulated in Zimbabwean historiography in a systematic and comprehensive way, i.e. the origins of a colonial environmentalism – one focused more on reinforcing white settlers’ sustainable uses of natural resources and less on Africans. It chronicles how the once verdant landscapes of colonial Zimbabwe were transformed into near waste in the first four decades of colonial occupation from 1890; highlights how the diverse voices of environmental concern that appeared at the time compelled the colonial Zimbabwean state finally to institute the Commission of Inquiry into the Preservation of the Natural Resources of the Colony of Southern Rhodesia in 1938; and examines how this Commission’s recommendations became the basis for the establishment of a number of institutional regulatory systems to initiate an efficiency-oriented approach to the management of the colony’s natural resources. It highlights how the notion of ‘sustainability’ was infused into the Commission’s Report and became such a powerful trope that it laid the basis for subsequent institutional and legal environmental resource management in colonial Zimbabwe, surviving intact into the first two decades of postcolonial rule. The article further explores how the farmer–miner conflict unfolded beyond the McIlwaine Commission and how the Natural Resources Board finally led to a successful resolution of the conflict in 1961. The McIlwaine Commission Report attests to rising social and environmental concern at the ongoing ecological decline of the colony’s resources, resulting in the realisation of a resolute response in order to guarantee the sustainability and welfare of white settler society.

L. F. Hughes, Back Page, Umtali and the Eastern Districts of Southern Rhodesia (1953)

A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action

A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.

The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)

Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):

The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.

To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.

*****

But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.

French forest law

The latest American Historical Review has a review by Jeff Horn of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015). Horn writes:

Matteson is at pains to demonstrate that over the long term, “peasant communities and practitioners of customary rights” retained “significant control over their forests” “through tenacity, wiliness, and sheer violence” (xv).

In an introduction, six long but fast-moving chapters, and a lengthy epilogue, Matteson considers the relationship of states, various types of property owners (such as seigneurs), and communities to forests, their management, and their economic exploitation.... Conservation is a major theme, particularly its intellectual foundations in Enlightened natural philosophy that Matteson refers to as a “formative period in the development of French environmental discourse and conservationist policy” (50). These ideas are then traced across subsequent regimes. Shifts in state oversight of the forests, mostly negative, form the spine of this book. Jean-Baptiste Colbert’s 1669 forest ordinance is at the heart of the first chapter, the “failure” of the changes made by the Revolutionaries in 1789–1791 is the focus of chapter 4, and the background and reception of the Forest Code of 1827 are the subjects of chapters 5 and 6.

Matteson makes three main arguments. First, she asserts that “peasant opposition to state forest policies produced greater gains than previously appreciated, even when it was crushed at the time.” Matteson also claims that the French environmental conservation had less to do with ecology “than with extending state power, suppressing sedition, and substituting commercial exploitation for communal utility.” Third, she maintains that “local, community-based arrangements for the management and use of natural resources … have been unfairly maligned, both in the historiography of the Revolution and in contemporary policymaking” (10–11)....