Monday, September 25, 2017

Beach access and American conservatism

Bixby Creek Bridge near Big Sur, California
(Bill Lane Center for the American West)
The issue of public beach access has played a major role in the history of environmental law (see, e.g., here, here, and here). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism". The article opens:
In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order to protect the state’s coastline from environmental damage and overcrowding. The commission ruled that Consiglio’s house would block the view of the ocean from a nearby highway, disrupt a path to a rocky cliff above the sea, and reduce public access to the beach below the development site. Using powers that had been delegated to it by the state legislature, the commission denied Consiglio’s application for a building permit. Consiglio could continue to own this scenic property overlooking the Pacific Ocean, but she would not be permitted to build a home there.
Consiglio eventually sought help from the Pacific Legal Foundation, a nonprofit, “public-interest” legal foundation established in 1973 by Ronald Zumbrun, a former aide to California governor Ronald Reagan, with help from several prominent California lawyers and businessmen. Zumbrun’s organization photographed the gray-haired woman, standing on a rocky cliff overlooking the Pacific surf, and put the image on the front page of its bimonthly newsletter. The accompanying article, titled “What Happened to the American Dream?” began: “Viktoria Consiglio, unhappy, confused, and angry, wonders what happened to her dream of owning a home by the sea. A dream that has turned into a nightmare of government red tape and legal costs that have taken a big chunk of her income from her job as a clerk-bookkeeper.” Lawyers at the foundation prepared to file suit, on the grounds that the Coastal Commission’s decision was inequitable, unjustified by law, and interfered with the woman’s property rights. The state of California may have certain powers to zone or plan for new development, the foundation argued, but it could not render this woman’s property nearly useless to her. 

Monday, September 18, 2017

Explaining the Persistence of 'Command-and-Control' in US Environmental Law

That's the title of a paper recently posted by Daniel Cole. The abstract:
Economists and legal scholars have known for decades that "economic instruments," including cap-and-trade regimes and effluent taxes, can reduce emissions at lower cost than command-and-control regulations. Yet, the US system of environmental law remains heavily dominated by command-and-control. How can we explain this remarkable persistence?
This paper considers three alternative explanations: (1) path-dependency; (2) public choice theories of interest-group politics; and (3) social-welfare/economic efficiency. Using examples, mainly from the US Clean Air Act, the paper finds that none of the three alternatives offers a sufficient and complete explanation of the persistence of command-and-control. But all three contribute significantly to a comprehensive explanation.

Friday, September 15, 2017

Hurricane Irma, Marco Island, and wetlands protection

Marco Island in 1964 (left) and present day (Michael Coleman)
Slate recently published a piece by Henry Grabar, "The Lessons of Marco Island", on the Florida island that was savaged by Hurricane Irma last week and the legal history that enabled its development while protecting nearby wetlands. Some highlights:
Forty years ago, the consensus of the state and federal governments was that Marco Island should not have been built at all. The community was the setting for one of the biggest development controversies in the United States and nearly ruined one of Florida’s largest and most celebrated developers. In a region with a notorious building addiction, it became the site of the environmental movement’s greatest victory over the Florida growth machine. Ecological foresight halted millions of dollars in real estate development and all but ended an engineering technique that had turned the South Florida coast from swampland to resort.
When brothers Robert, Elliott, and Frank Mackle discovered Marco in the early 1960s, half of its 10 square miles consisted of mangrove swamps. Home to just a few hundred people and an abandoned clam factory, it was the single largest undeveloped barrier island property in South Florida. 
The plan called for 35,000 residential units, which would require displacing 18.2 million cubic yards of ground (more than 150,000 dump trucks’ worth), dredging the land into channels, and using the dredge to create development sites in the swamp. This method is common across South Florida; Cape Coral, a little to the north, is a good example. Still, at the time, Marco Island was the largest “finger-fill” waterfront housing project to ever come before the Army Corps of Engineers, Science reported in 1976.
Deltona's "finger-fill" development used dredging to transform swampland into canal-side residential plots
(Flip Schulke/US National Archives and Records Administration)

Tuesday, September 12, 2017

Environmentalism of the Rich

Public Books recently ran a review by Max Holleran of  Peter Dauvergne's Environmentalism of the Rich (MIT Press, 2016). Holleran writes that the book
traces the shifting tactics of mainstream environmentalism from the radicalism of the 1970s to the corporate partnerships of the 1990s, in which companies accomplished incremental changes through in-house consultations with groups like the Sierra Club. It details how many green groups began as firebrand protectors of the earth, deeply inspired by indigenous movements that opposed the sale and commodification of nature, but have since morphed into something akin to compliance departments for large companies.
Green movements of the Global North and the Global South are markedly different; within that divide, unique national experiences have produced a variety of environmentalisms, some of which do not even use the name and prefer to align with indigenous rights or class-based movements. The 1970s environmental movement came of age during a time of decolonization, and many pioneers of the movement were allies of nations in the Global South seeking both political independence and more autonomy within the global economy. Dauvergne shows that most resource extraction has imperial roots, when European powers saw the wider world as a zone for the collection, and often pillage, of raw materials. The “green” decolonization movement was fundamentally anti-capitalist; it suffered when many Global North environmentalists chose to advocate for a green economy, rather than a new economy based on rethinking global trade.
Holleran writes that the book argues that increased environmental awareness has not necessarily translated into increased regulation. Rather,

Monday, September 11, 2017

Forest law and constitutional change

Rata forest on on Enderby Island
Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History. The abstract:
New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

Sunday, September 10, 2017

Water law in medieval Lombardy

"Diploma" of Frederick Barbarossa granting navigation rights to the monastery of
San Carpoforo di Como (1159)
I recently came across Acque della Lombardia Medievale, apparently the catalog for an exhibition held by the Biblioteca Ambrosiana di Milano in 2015. (If you're ever in Milan, don't miss the associated Pinacoteca Ambrosiana.) The editors, Federico Gallo and Rita Pezzola, write:
According to Roman law, one defines every permanent water-course as "publicum" whether it was navigable or not, and only rivulets and streams were considered private. During the Middle Ages and in particular in the 10th and 11th centuries, we find more and more imperial and royal diplomas giving grants and donations related to stretches of rovers: they refer to the construction of ports and mills and to fishing and navigating rights. Thus the principle, or better the custom, of considering some parts of a river as capitalized (today we would say "privatized") was established, and more and more we find that the water-course was at the disposition - more or less in their possession - of the people who owned the adjacent land. During the Dieta di Roncaglia (Piacenza) in 1158, Federico I, called Barbarossa - assisted by lawyers from the school of Bologna - redefined the legal status of rivers. Referring to Roman law, the Emperor inserted the "flumina navigabilia" in the regalie (royal prerogatives), so that the "flumen publicum" no longer referred to permanent water-courses, but only to the navigable ones.
For a similar development in 19th-century Canadian water law, see here.

Tuesday, September 5, 2017

Transboundary governance

Murray Clamen and Daniel Macfarlane recently posted "The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes". The abstract:
This article provides a historical background of the evolution of transboundary water governance and environmental diplomacy in the Great Lakes–St. Lawrence basin, with a focus on the International Joint Commission (IJC), during the twentieth century. This study focuses on water quantity issues, such as diversions, canals, hydroelectric developments, control works, and water levels, revealing the range of  artificial and natural impacts on water levels in the Great Lakes–St. Lawrence basin. Doing so provides for a revealing examination of the IJC, which has traditionally been the main forum in which Canada and the United States manage their environmental relations and border water issues, which allows for an engagement with a range of North American transboundary governance theories. While the IJC is often lauded as a model of transnational environmental cooperation, this paper demonstrates that the evolution of this bilateral institution up to the 1960s is more complicated.

Sunday, September 3, 2017

From Charlottesville to Yosemite

The Ahwahnee Hotel in 1980 (George Rose)
Daniel Duane has an interesting piece in yesterday's New York Times on genocide of the Yosemite Valley's natives and the replacement of their names with Anglo ones, and it all starts from a trademark dispute. After detailing the killing and renaming of places in Yosemite carried out by California militia, Duane explains both the legal dispute and the complexity of the name issue:
The recent furor over the name of the Ahwahnee began in 2015, when a subsidiary of the Delaware North Corporation, which operated the park’s hotels, restaurants and shops for more than two decades under a government concession contract, lost its contract to Aramark (no tragedy there — the burgers were criminal). The government says Delaware North quietly registered the trademarks for the names on the hotel and the other places and is now demanding payment for their use. The National Park Service came up with new names and told Delaware North to get lost. Now there’s a federal lawsuit.
I dearly hope Delaware North loses, but I also hope that the National Park Service sticks with the new names, however ridiculous — and, while they’re at it, changes dozens of others. My vote would be to change Tenaya Lake to Pywiack Lake, relabel Yosemite Valley itself Ahwahnee and sprinkle the park with new historical plaques saying things like “On this spot, in 1851, American militiamen shot Tenaya’s son in the back, let him bleed out in the grass, then dragged Tenaya up to have a look and enjoyed watching him weep.” 

Friday, September 1, 2017

Social justice and the historical development of water rights

Jill Robbie blogged this week at the University of Glasgow School of Law's blog, exploring connections between her work on the history of Scottish water law (see her Private Water Rights, 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes:
In The Colorado Doctrine, David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.
David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.
The findings contained in The Colorado Doctrine have interesting parallels in Scotland. The water rights regime in Scotland developed between the mid 17th and mid 18th centuries. Advocate, judge and jurist, Lord Kames was at the centre of this development and established the theory that as water is among the res communes, or communal things, it is outwith ownership and open to all humankind. Everyone has a right to appropriate a portion of water. If a landowner diverted a river, this would be depriving those downstream of their public right to appropriate the water and landowners were therefore prohibited from diverting the rivers running through their lands. This obligation on landowners was then developed by the courts into a correlative right held by landowners against any interference with the flow of a river. Landowners are allowed to take water for primary purposes, such as drinking, washing and cooking, but no other interference with the material flow is allowed. David’s argument regarding the inaccuracy of a strict divide between common and private property regimes is therefore demonstrated by the Scottish regime which derives from a system of commons but with the result that no one is entitled to use water for secondary purposes, such as agricultural or industrial purposes, unless they obtain agreement from the landowners along a river or they are in the position of having a river wholly contained within their own land.

Monday, August 21, 2017

Oil, competition, and Martians

The Public Domain Review recently posted (courtesy of a fascinating and entertaining animated short from 1956 by the American Petroleum Institute, entitled "Destination Earth". As the Review explains:
Produced at the height of the Cold War, and made at the behest of the American Petroleum Institute (still the biggest lobby for the U.S. oil and gas industry), this great little promotional film from John Sutherland Studios champions not only the wonders of oil as might be expected, but also free-market capitalism. The surprisingly humorous cartoon tells the story of how the suspiciously Stalin-like leader of Mars, named Ogg, sends a rather calamity-prone citizen to Earth to find a better power source for his poorly-running “state limousine”. The exploring Martian, of course, lands in the United States and soon discovers the many and myriad delights of petroleum, and that, in contrast to his home planet, competition between companies is rife. His take-home lesson (and one drilled into the viewer on numerous occasions) is that “competing for the customer’s dollar” is key to the success of the oil industry and, of course, the thriving country as a whole. Delivering the news to Ogg back on Mars, the leader replies defiantly that “competition is downright un-Martian”, but the ordinary Martians are not to be deterred and soon rise up to overthrow Ogg and set up a thriving oil industry (and capitalist culture) of their own — the short ending with the slogan “destination unlimited” writ proudly across the screen.

Tuesday, August 8, 2017

Tort and environmental regulation

Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

Sunday, August 6, 2017

Drainage, law, and statebuilding

New Book Network recently posted an interview with Eric Ash about his new book, The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016). NBN writes:
Today “The Fens” is largely a misnomer, as the area of eastern England is now largely flat, dry farmland. Until the early modern era, however, it was a region of wetland marshes. Eric Ash‘s book... describes how The Fens was transformed into the environment we know it as today. As Ash explains, the marshes supported a population that took advantage of the lush grasses produced by the regular flooding to engage in animal husbandry, with flood control managed locally through appointed commissions of sewers. In the late 16th century, however, a combination of environmental change and political shifts led the royal government to support proposals for large-scale drainage projects that would turn the wetlands into farmlands. Though the plans’ advocates argued that drainage would improve the value of the lands in the region, the locals resisted such efforts to disrupt their ways of life through a variety of legal and extralegal means. In response the crown moved from efforts to develop consensus for the plans to asserting royal authority in environmental management in order to start the projects, beginning by the 1620s the first of a series of efforts that over the course of the next half-century drained many of the fens in the region.

Friday, August 4, 2017

American regulation of water pollution

Water filtration plant at Lake Montebello, Maryland, 1915
This Day in Water History recently posted a Municipal Journal and Engineer article from 1909, "Stream Pollution in America", which surveys some of the state-level regulation of water pollution going on at the time. The blogger notes that "we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored", but I'm not sure the situation today is so different. Some excerpts from the 1909 article:
At a Conference of State and Provincial Boards of Health of North America, held in Washington last June, the Committee on the Pollution of Streams appointed last year presented a report in which it gave some data concerning the extent to which the pollution of streams was being regulated by the various States. Ohio, New Jersey and Kansas have, according to this report, passed laws during the last few years which ”are especially worthy of note as indicating advancement and the confidence which the Legislatures of these States must feel in these State Boards of Health.” From the reports of the secretaries of the Boards of Health of the several States they abstract a number of statements showing what is being accomplished by them.
In New Jersey there are 54 sewage purification plants in operation or ready for operation by municipalities and large public institutions. The policy of that State is to allow no untreated sewage to be discharged from new systems into waters of the State. The Board of Health is also compelling municipalities to install purification plants on existing sewerage systems, and 22 are now under orders to cease pollution of the streams, these including all municipalities on the Delaware River.
The Ohio State Board of Health has been asked to investigate 18 complaints under the act prohibiting stream pollution, and has ordered sewage disposal works to be installed in four of the cities before Jan. 1, 1910. The constitutionality of the law under which they act has been questioned, but if decided in their favor they hope to prevent the pollution of all the streams in the State.  

Thursday, August 3, 2017

Canadian water law

The McGill Journal of Sustainable Development Law recently published an article by Jamie Benidickson, "The Evolution of Canadian Water Law and Policy: Securing Safe and Sustainable Abundance". The abstract:
Canadian water law has evolved over an extended period of time as a complex mixture of federal and provincial legislation and case law with provincial arrangements influenced by both riparian and prior appropriation doctrine as well as by the civil law tradition of Quebec. The article reviews highlights from the long-term evolution of Canadian water law, policy and institutions following a chronological path from Confederation in 1867 to the present. Three key shifts that have more recently begun to appear in background assumptions of Canadian water law are then identified. In particular, it is noted (1) that general confidence in the abundance of water is giving way to concerns over security and occasional scarcity, (2) that the primacy of human water uses is gradually being moderated by acknowledgement of the importance of environmental flows, and (3) that international considerations may be relevant to a greater degree than previously contemplated. The concluding section of the paper presents emerging policy directions in relation to the legacy of historic water law and policy decisions and the shifting assumptions previously reviewed with emphasis on sustainability, conservation initiatives and watershed frameworks.
Vermillion River, Kootenay National Park
For pre-1867 Canadian water law, see the recent series beginning here.

Tuesday, August 1, 2017

500th post - Historical analysis in environmental law

This is the 500th post on this blog!

Though I've just finished a series based on an article of mine, this seems like as good an opportunity as any to mention a new piece I just posted, "Historical Analysis in Environmental Law", forthcoming in the Oxford Handbook of Historical Legal Research. It's particularly appropriate for this occasion, as working on this blog was extremely helpful to me both in getting a sense of the field and in bringing important work to my attention. So thanks to all of you writing in the intersection of environment, law and history!

Here's the abstract of the chapter, I'll probably do a series of posts later:
Environmental law has no history. This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun. Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history. Environmental law has no history in a second, sense, too; it lacks history as a mode of argument or analysis. In legal cultures in which precedent and history are often what make a winning argument, the unavailability of historical analysis as a mode of legal discourse — as it is, for instance, in constitutional and property law (two fields in which environmental legal disputes are often entangled) — means that environmental values often are forced to retreat in the face of others. For these reasons environmental law needs both heightened historical analysis and a sense of its own historical roots. This essay aims to sketch current, possible, and desirable directions for future research into the history of environmental law. Before doing so, it notes a current scholarly pathology.
Lesser Ury, Siblings (1883)

Sunday, July 30, 2017

Inter-imperial riparian law VI: Miner as an inter-imperial legal authority and Conclusion

On Friday we discussed the place of French and American law in Privy Council water decisions, leading up to the seminal 1858 case of Miner v. Gilmour. Today we'll look at how Miner became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article on which this series is based).

Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine.

"a lord of appeal" [Colin Blackburn].
(Spy, Vanity Fair, 19 Nov. 1881)
Perhaps the most interesting reliance on Miner (for our purposes) in the water jurisprudence of the British Empire came in two decisions authored by the British judge Colin Blackburn. In the House of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish law applied by the Scottish court below, arguing (inter alia), "If such be the law of Scotland it is different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the law of England and France". Lord Blackburn, it seems, was ready to modify the law of the metropolis (albeit of Scotland, a jurisdiction of secondary importance, and one in which the civil law, not the common law, applied), bending it to conform to the law as laid down in Miner, a case governed by the law of a foreign empire.

A few years later came Commissioners of French Hoek v. Hugo, an appeal to the Privy Council of a judgment of the supreme court of the Cape Colony, in today’s South Africa.  Governing the dispute over the waters of two small watercourses was what is known as Roman-Dutch law. This was the law in force in the Cape Colony when it was ceded by the Dutch to the British at the end of the Napoleonic wars (the metropolitan Netherlands had by this point adopted the Napoleonic Code for use in the home country), and, as the colony had been conquered from another state, not “settled”, this was the law that remained in force under British rule. Like the pre-Revolutionary French law in force in Quebec, Roman-Dutch law was based largely on the writings of learned ‘civilian’ jurists writing in the Roman law tradition. Indeed, in addition to Cape Colony cases and Roman-Dutch sources, lawyers for the appellants cited French treatises in support of their argument.

Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the summary of the law of riparian rights in Miner v. Gilmour, seeming to attach some importance to the similar positions of the Roman-influenced civil law in Canada East and the Cape Colony:

Friday, July 28, 2017

Inter-imperial riparian law V: Encounters of legal empires in Miner?

Yesterday I discussed why American water law may have been attractive to judges applying French law in Canada. Today we move the focus back to London and the Privy Council:

The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources.

W. Holman Hunt, The Right Hon. Stephen Lushington (1862)
(Victorian Web)
Moreover, the incorporation of the civil law into the common law of waters and the export of this mélange throughout the common-law world might be seen as the product not only of a one-time encounter with the law of Canada East in Miner v. Gilmour, but of an ongoing engagement with this odd jurisdiction, at once an integral part of the ascendant British Empire and the offspring of the old French Empire. Thus we find the Lower Canada case of St. Louis v. St. Louis, discussed earlier for Chief Justice Sewell’s use of Kent as authority for a point of French law, making its way to the Privy Council in 1841. The judge who delivered the judgment of the Judicial Committee, Stephen Lushington, a prominent and knowledgeable English civilian lawyer (he was a judge on ecclesiastical and admiralty courts, enclaves of civil law in the English legal system), was also a member of the panel that decided Miner v. Gilmour. Might the bold statement of the court in Miner, according to which riparian rights in the common law were essentially the same as in the civil law, have been influenced by Lushington’s exposure to precisely this attitude by the American-Canadian judge Sewell in St. Louis?

Sewell’s view in St. Louis may have influenced the common law of waters through yet another route, as well. Sitting alongside Lushington on the Judicial Committee to hear the appeal of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant judge on the English Court of Exchequer. Within the decade, his court decided two cases—Wood v. Waud and Embrey v. Owen—which were the first English cases to adopt the American law of riparian rights, relying heavily on Kent, Tyler v. Wilkinson, and French sources.  Could the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, leading his court to base modern English riparian law on French and American sources?

Here we encounter a methodological difficulty—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘ordinary’ kind, between two national jurisdictions, whether imperial metropolises or not, on the other. Put more concretely, was the intermixture of the laws of the old French Empire and the new American one in the courts of the British Empire a true inter-imperial encounter? Or might it be better conceived of as a case of British judges being influenced by the laws of France and the United States, two national jurisdictions the laws of which they were inclined to consider by factors such as geographic proximity, cultural affinity, common legal origins and the availability of law books, independently of their crossed imperial histories?

Thursday, July 27, 2017

Inter-imperial riparian law IV: The attraction of American law

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources. Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.

 Hon. Justice T.C. Aylwin (Library and Archives Canada)
In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a public river. Aylwin objected to this analysis: ‘Our rivers cannot be compared with those of France or Europe; the Jacques Cartier is a good sized river and has plenty of water,—it has rapids it is true, but […] I believe the river to be both navigable and flottable.’ Following a tradition going back to Montesquieu and further, Aylwin argued that French law could not apply unmodified in North America, as it was developed for a different set of environmental circumstances. Similarly, in a 1905 case Justice Trenholme of the Quebec King’s Bench noted that American authorities on the question of navigability ‘possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in our country’.

Yet it seems this was not the only reason for Canadians’ turn to American water law. Returning to Brown v. Gugy, it is significant that the American case which Judge Aylwin preferred over the lower court’s ruling was from Louisiana, the only American state which based its legal system on (French) civil law. Moreover, Kent’s discussion of water law (like his discussions of many other subjects) was replete with references to civilian sources. In the pages quoted in Aylwin’s opinion (sections 6 and 7 of Kent’s Lecture 52), the American jurist cited a large number of American and English cases, as was appropriate for a work purporting to be a commentary on American law, but his very first citations were to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later in the section, he cited again to Pothier, quoted with approval a maxim of Roman law and stated that the Code Napoléon established the same rule as said maxim.

Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or rather mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources in the section cited above was riddled with errors and that it provided little support to his exposition of riparian rights.  Nonetheless it seems that Judge Aylwin saw Kent as a good civilian source, prefacing his long quote from the Commentaries thus:

Wednesday, July 26, 2017

Inter-imperial riparian law III: American sources of French-Canadian water law

Continuing where yesterday's post left off:

Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court.

Jonathan Sewell
(Appleton's Cyclopaedia of American Biography, 1900)
The earliest fully reported case of this type was the 1832 case of Oliva v. Boissonnault. James Oliva sued Nicolas Boissonnault in the court of King’s Bench, District of Quebec, for placing obstructions in the Rivière du Sud, blocking the floating of logs downstream to the St. Lawrence. Chief Justice Jonathan Sewell ruled for Oliva, explaining that under French law the public had a right of passage on every stream capable of floating logs or rafts. Alongside his discussion of French law, he noted that the public’s right was the same in England and America, citing Kent’s Commentaries with regard to the latter. Two years later St. Louis v. St. Louis, another water law dispute, reached the courts. This time the case involved a riparian landholder diverting water through a canal to his sawmill so that it bypassed the gristmill and carding and fulling mill of his downstream neighbours. Sewell, sitting this time in the Provincial Court of Appeals, again cited Kent, here in support of the proposition that a riparian landowner might ‘conduct such portion of the stream as he requires for the amelioration of his - property by canals or otherwise through the extent of the land which he occupies, but he must return it to the stream before it reaches the confines of his neighbour’s estate’.

Tuesday, July 25, 2017

Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.
Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)
The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.

Monday, July 24, 2017

Inter-imperial riparian law I - Introduction: Inter-imperial law in an inter-imperial court

It seems I forgot to mention my own article when I posted it a while back. "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences" was published as chapter 4 of Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book.

One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic—that is, Anglo-American—framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development.  Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

The court case of Miner v. Gilmour can be seen as the epicentre of this inter-imperial encounter. The case began as a conflict in the 1850s between two prominent citizens of the Eastern Townships village of Granby, in the part of Canada then known as Canada East (in the half century preceding 1841 called Lower Canada, the southern part of today’s Quebec). Harlow Miner’s tannery on the south bank of the Yamaska River, the town’s major industrial enterprise, was powered by water directed from a dam in the river, but Francis Gilmour, the town’s store-keeper, had been opening a sluice on the north side of the dam in order to allow the water to flow through and power his gristmill downstream. In order to put a stop to Gilmour’s interference with his business, Miner brought a lawsuit in the Superior Court of the District of Montreal.  When the court ruled in Miner’s favour, ordering Gilmour to cease and desist diverting water away from Miner’s mill, Gilmour brought an appeal to the Court of Queen’s Bench of Canada. Here the decision went in his favour, and the court dismissed the plaintiff’s suit. Unsatisfied with this result, it was Miner who appealed this time, making use of the only remaining judicial recourse available to him, an appeal to the Judicial Committee of the Privy Council in London.

The Privy Council, an organ of the British monarchy, was for years the executive body through which British overseas possessions were governed, also hearing appeals from the courts of these colonies. In 1833, in an effort to give these appeals a more judicial character, Parliament created the Judicial Committee of the Privy Council, composed primarily of judges from other British high courts. Though formally not a court of law—the members of the committee did not wear judicial garb, they sat around a table with the parties’ counsel and their decisions were, strictly speaking, merely recommendations to the monarch, who would then issue an order giving force to the recommendation—in practice it functioned like a court, and was treated as such by all. This new judicial body was tasked with hearing appeals from overseas possessions (as well as from the British court of Admiralty and ecclesiastical courts).

The Judicial Committee, hearing cases from far-flung possessions around the globe, was an imperial institution par excellence. The nature of litigation in the common law, adversarial, system—in which the parties, not the state, generally determined if and when court proceedings would be conducted, and on what legal grounds—meant that the court’s agenda was largely shaped by the decisions of litigants in the courts below. Nonetheless the Judicial Committee’s worldwide jurisdiction, along with its judges’ parallel tenures on other British high courts, gave it a potentially harmonizing and homogenizing role; ‘The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London.’ (Cornish, Lobban, Smith, "Empire’s Law", p. 245)

At the same time the Judicial Committee was in effect an inter-imperial institution.

Sunday, July 23, 2017

Environmental racism, American exceptionalism, and Cold War human rights

OAS headquarters in Washington
Carmen Gonzalez recently posted "Environmental Racism, American Exceptionalism, and Cold War Human Rights". The abstract:
Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism. 
However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has generally resisted scrutiny of its human rights record by domestic or international institutions on the basis of “American exceptionalism” -- the belief that the U.S. is unique in its commitment to freedom and equality and provides more robust protection of human rights than international law. What historical events triggered this resistance to international human rights law? What are the implications for human rights-based approaches to environmental protection? 
This article explains how the struggle for racial justice in the United States at the height of the Cold War shaped U.S. attitudes to international human rights law. Using Mossville Environmental Action Now v. United States as a case study (currently pending before the Inter-American Commission on Human Rights), the article argues that international human rights law is far superior to U.S. domestic law as a means of addressing environmental injustice. However, its utility is constrained by legal doctrines developed over time but reinforced during the Cold War that restrict the enforcement of international human rights law in U.S. courts. Nevertheless, a victory for the Mossville petitioners would be immensely useful as part of a larger strategy to name and shame the United States, to bridge the gap between international law and domestic law, and to educate government officials and the public at large about the relationship between environmental protection and human rights.

Friday, July 21, 2017

Top 100 environmental blog

I'm happy to report that Feedspot has named Environment, Law, and History one of the top 100 environmental blogs. Thanks to all of you - the readers, writers, commenters, mentioners, and so on - who made it happen!

Thursday, July 20, 2017

Dutch drinking water

David Zetland and Bene Colenbrander recently posted "The Evolution of the Dutch Drinking Water Sector". The abstract:
Dutch drinking water companies (DWCs) have brought more water of better quality to more people over the past 160 years, but their institutional environment has changed with social priorities. We divide these changes into four eras in which an initial solution leads to a new constraint that forces a change in priorities and thus DWC actions. The first era begins around 1850 when polluted common pool water attracts sellers of drinking water as a private good. Priorities changed around 1900 as the government pushed for a network expansion that would bring drinking water services to all as a public good. The third era began around 1950 as strains on common-pool budgets and water supplies shifted the focus to rationalization and efficiency. The fourth and current era began around 1970 with DWCs being asked to restore ecosystems and play a larger role in the community. These shifts demonstrate how the path towards clean, safe drinking water may twist and turn as new opportunities eclipse past successes and changing priorities shift the relative costs and benefits of different actions.

Wednesday, July 19, 2017

The tobacco playbook

(Sorry for the long silence, I've been busy with some other things. As always, if you're interested in contributing posts to the blog, I'd be more than happy to help! In the meantime:)

Sarah Milov (a co-founder of this blog) recently published a piece in the Washington Post on the history of grass-roots anti-tobacco campaigns that might serve as a model for climate activism today. Some highlights:
Activists won the fight against tobacco by working on the local, not national, level. Neither the Occupational Safety & Health Agency nor the Environmental Protection Agency regulate secondhand smoke. Congress has never passed a Non-Smokers’ Rights Act. Instead, 41 states and 1,354 cities have enacted laws to protect the health of citizens. They did so in response to the sustained activism of men and women who argued that the government was not doing enough to protect their rights.
In 1973, the dogged efforts of Betty Carnes, a sexagenarian amateur ornithologist, resulted in Arizona’s passage of the first law that banned smoking in elevators, museums, theaters, buses and libraries. Two years later, Minnesota passed an even more comprehensive Clean Indoor Air Act that banned smoking in many workplaces, stores, and banks.
These state-focused efforts threw a wrench in tobacco’s well-oiled lobbying machine. Since the 1930s, the tobacco industry had enjoyed close relationships with tobacco-state congressmen who wielded disproportionate power in the Democratic Party coalition. And with millions to spend on well-connected Washington lawyers, the tobacco industry wielded clout with the federal agencies that had the capacity to regulate the many ways that tobacco touched Americans’ lives: as a drug, a consumer product, a pollutant, or a workplace hazard. 
...By 1981, 36 states had some kind of public smoking restrictions on the books. A decade earlier there had been none.
Action at the local level was even more dramatic — and even harder for the industry to combat. Berkeley passed one of the nation’s earliest antismoking ordinances in 1977 when it banned smoking in restaurants, but local smoking ordinances were not just for bohemians and health nuts. In 1981 alone, 35 cities passed indoor smoking restrictions, including Baton Rouge; Leavenworth, Kan..; and House Speaker Paul D. Ryan’s hometown of Janesville, Wis.
In the 1970s, antismoking activists were outnumbered and underfunded. But by developing their own playbook — where cities functioned as both a site for social activism and a node of resistance against federal inaction — citizens cleared the very air we breathe. Today’s citizens now have a chance to do the same. 

Wednesday, June 21, 2017

Environmental originalism

Over at Legal Planet Dan Farber recently blogged on "The Truth About Environmental Originalism". Farber writes:
Scott Pruitt has taken to talking about environmental originalism – going back to the original intent of our environmental laws. But he’s got the original intent completely backwards. The statutes weren’t intended to protect jobs or grow the economy. They were intended to protect the environment, with cost at best a secondary consideration.
In fact, some of the key provisions of our environmental laws preclude consideration of cost or even technological feasibility. For instance, the Clean Air Act requires EPA to set national air quality standards based entirely on possible risks to public health – and “with an adequate margin of safety.” As Justice Scalia himself was forced to admit in Whitman v. American Trucking Ass’n, the statute “unambiguously bars cost considerations.” In fact, he said in a footnote, EPA would be reversed in court there was proof that it secretly did take cost into account. (Pruitt might want to take note of this, given the number of leaks from the government these days.) As Scalia also recognized, these cost-oblivious air quality standards are the linchpin of the Clean Air Act. 
This is not the only statutory provision that ignores costs. The Endangered Species Act prohibits agencies from jeopardizing the survival of species in absolute terms, with only a rarely used exception for extraordinary cases, requiring approval by a special cabinet-level committee. OSHA requires that standards for toxic chemicals in the workplace be set to eliminate any significant risk to workers, unless doing so would bankrupt the industry.
It’s important to recognize that the federal environmental laws were passed in a time of remarkable public ferment over the environment. Don’t forget this was the era of the first Earth Day, of Rachel Carson’s Silent Spring, and of a public shocked by a fire on the Cuyahoga River and the Love Canal toxic dump. As I discuss in a recent paper, even arch-conservatives like Barry Goldwater and William F. Buckley were calling for much stricter pollution control. The public today remains broadly supportive of environmental regulation but the issue is no longer a top priority for most people. But it was an urgent priority in the 1970s when these laws were passed. The original intent was about as far away from current Republican views as humanly possible. If they could see that Scott Pruitt had become head of the EPA, the framers of these laws would have been appalled.

Tuesday, June 20, 2017

Property law and flooding

William Smyth Maynard Wolfe, “Maugerville on the St. John River, New Brunswick”
Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, "High Freshets and Low-Lying Farms: Property Law and St. John River Flooding in Colonial New Brunswick". The abstract:
Although New Brunswick was founded on private land ownership, colonists who settled low-lying land along the St. John River found that the waterway's erratic flood cycle and ever-changing nature threatened their lives and farms, and thwarted their efforts to divide riverbanks and islands into fixed parcels of private  property. This article draws upon colonial petitions, sessional court records, and colonial legislation in analyzing the response of the colonial legislature and of local governance to the challenge that the St. John River created for property rights and a private land management system dependent on static boundaries and fixed fences. In examining the colonists' attempts to adapt property law to foster appropriate responses to their changing environment and social needs, this article provides insight into the evolution of colonial law, local governance, the ecological knowledge of farmers, social conflict, and adaptations to flooding in early New Brunswick.

Monday, June 19, 2017

Legal traditions and environmental factors in water law

Gonzalo Rodriguez recently posted "Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta". The abstract:
No single factor has had a more significant effect on the ebbs and flows of history than water. Water creates civilizations, and water brings them to extinction. Even today, thousands of years after we learned to harness the power of water, we continue to struggle in determining how to prioritize competing uses of water resources, how to make water available to all who need it, and how to protect it. Yet, these are questions that humans have faced since as long as history dares to recollect.
What factors guide civilizations in their decision whether, and to what extent, to regulate and protect inland waterways? This article looks at four legal codes from three distinct civilizations: From the Romans, The Institutes of Gaius and the Corpus Juris Civilis; from the Visigoth Kingdom, the Visigothic Code; and from the English, Magna Carta. This article proposes that, perhaps more so than inherited Roman tradition, two sets of factors influenced the extent to which these codes protected inland waterways: perceptions of water resource abundance and the propensity for navigability and trade of these civilizations’ inland waterways.

Sunday, June 18, 2017

Scalia's "takings" legacy

John Echeverria recently posted "Antonin Scalia's Flawed Takings Legacy". The abstract:
This essay offers a generally negative appraisal of the significance of Justice Antonin Scalia’s work on the takings issue during his tenure on the Supreme Court. While Justice Scalia was a visible advocate for expanding the scope of regulatory takings doctrine, and his opinion for the Court in Lucas v. South Carolina Coastal Council represents an important precedent, the totality of Scalia’s takings work turned out to be relatively inconsequential. He only authored two majority opinions in takings cases during 30-plus years on the Court. No grand theory motivated his work on the issue, though he was surely sympathetic to the potential for the Takings Clause to constrain the permissible scope of government regulation. Scalia’s substantive contributions to takings jurisprudence are best understood as an effort to elaborate upon the two-part takings test articulated by Justice Lewis Powell in his 1980 opinion for the Court in Agins v. City of Tiburon. The first branch of this test, suggesting that a regulation denying economically viable use of property necessarily represents a taking, blossomed into the Lucas decision; though undeniably important, Lucas has turned out to have a relatively narrow scope. The second branch of the Agins test, suggesting that a regulation results in a taking if it fails to substantially advance a legitimate governmental interest, was repudiated by a unanimous Supreme Court, including Scalia himself, in the 2005 decision in Lingle v. Chevron USA Inc.
For more on Scalia and takings, see here.

Thursday, June 15, 2017

Property in water and urban water supply

"New" Jersey City reservoir, c. 1880
Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water, but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919:
Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it. 

Monday, June 12, 2017

Indian water rights, federal water rights, and state courts

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT)
Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights", published in Environmental Law. The abstract:
The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control,” and has subjected the tribes to “hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims.”
The purpose of this Article is to examine the legislative history of the McCarran Amendment ― the available Congressional Record, the Senate Report, as well as the Hearing Minutes ― in an effort to ascertain whether it was Congress’s intent to include Indian reserved water rights within the scope of the McCarran Amendment.
The legislative history indicates that “the McCarran Amendment was meant to be interpreted narrowly, not broadly.” It demonstrates that the Senators’ actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing “the years of building the water laws of the Western States . . . [to] be seriously jeopardized.”
Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a “privilege of immunity that the original owner wouldn’t have.” Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law.
For more on Indian water rights, see here.

Sunday, June 11, 2017

Water law and apartheid

The latest Water History has an article by Johann Tempelhoff, "The Water Act, No. 54 of 1956 and the first phase of apartheid in South Africa (1948–1960)". The abstract:
After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas; and taking steps against the increasing threat of water pollution. In this paper the focus is on the way the department, in terms of the Water Act of 1956, responded to the policy of separate development (apartheid), but at the same time took a deeper and long-term view of the development of water infrastructure to be of value for the country and its people, beyond the shorter temporal view of the political leaders of the day. The period 1948–1960 can be seen as the first phase of apartheid (1948–1960). It was notable for the initial emergence of significant opposition amongst the country’s indigenous African people to the white minority government’s apartheid policies, but their struggle was subdued. This phase came to an end at a time when the rest of Africa was engaged in rapid decolonisation and South Africa became politically ostracised in the international arena. What is apparent is that the emergent hydraulic mission of industrialisation promoted unsurpassed development that was destined to have a marked effect on South Africa’s status as a modern state on the African continent.

Friday, June 9, 2017

Unraveling the racial context of property rights

Joseph Singer recently posted "Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest", an article relevant, I think, to those engaged with the history of law and the environment. The abstract:
John Marshall
The case of Johnson v. M'Intosh, 21 US 543 (1823), is taught in many property law classes and is the only information given to new law students about the property rights of Indian nations. However, the case is often misunderstood as denying title to those nations. A close reading of the opinion, in light of three later cases decided in the early 19th century, reveals that the Supreme Court intended to recognize "Indian title" while granting the United States a right of first refusal if tribes sought to sell property on the open market to non-Indians. Far from denying tribal property rights, Justice Marshall's opinion in this case, as explicated by later cases, actually sought to protect tribal title from expropriation by the United States unless the tribes voluntarily consented to the transfer of land.
While it is true that the opinion contains offensive and racist language, assumptions, and arguments, it is important not to ignore the ways in which the opinion sought to criticize, as well as justify, conquest and to put a halt to it in the future. Of course, history did not turn out that way but it did result in our current reality where conquest was incomplete. There are 567 federally-recognized Indian nations in the US and if property law professors teach students that conquest was complete and that tribes have no property rights in their land, those messages have current consequences for tribes trying to exercise sovereignty and property rights today. The truth is that Indian nations have both sovereignty and property rights over their lands and they do not have a mere license or "permission from the whites to occupy" (as the Supreme Court suggested in the 1955 case of Tee-Hit-Ton v. United States).
Both property law professors and scholars of federal Indian law should understand both the offensive racist reasoning in the decision and the ways in which the opinion represents one of the most pro-Indian nation decisions in the history of the Supreme Court. Treating the opinion as simply a racist relic of the past, like the Dred Scott decision, and nothing more, deprives Indian nations of the ability to use the case (and later cases like it) as a bulwark against further non-consensual deprivation of tribal property rights. And such a misreading of the case infects current politics by suggesting that tribes are being unreasonable when they seek to have their property rights be given equal respect to the property rights of non-Indians.
The importance of recognizing that federal law does protect tribal title can be seen easily if one simply considers the Standing Rock Sioux's opposition to a pipeline that threatens their ancient lands—lands that are currently protected both by tribal law, a treaty with the United States, and federal statutes and common law. Understanding Indian title as an estate in land that is every bit as powerful as the fee simple—as equally "sacred" in the words of the Supreme Court—is the message we should be sending to new lawyers, not the opposite.