Thursday, November 16, 2017

Trump, Carl Schmitt, and climate change denial

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt". Some excerpts:
We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes.
The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past.
*****
As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism.
In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era. 
*****
Two principles of Schmitt’s writing are especially relevant to understanding the place of climate change denial in Trumpism’s historical consciousness, and they’re worth discussing at some length. Each principle links Trumpian domestic and international politics as two sides of the same philosophical coin.
The political is inviolable
First, for Schmitt a community’s ability to draw the friend-enemy distinction can—by definition—brook no conceptual or institutional restraint.
Most notably, the distinction can’t be predicated on other domains of human value, such as morals, aesthetics, or economics. Ideals from these fields may be used to enhance public feelings of opposition. Enemies are regularly portrayed as ugly, for instance—a practice at which Trump personally excels.
But the object of a community’s political dissociation is made on the basis of criteria independent from judgments about good and evil, beauty and ugliness, or profit and loss.
Liberals today regularly violate this principle. They seek to circumscribe national sovereignty within generally-applicable legal norms such as individual human dignity—consider Article I of the German Basic Law—and to restrict it through institutions like the United Nations.
Schmitt views such liberal projects not simply as naïve, but also as a recipe for social chaos at home and unrestrained, imperialistic violence abroad. 

Tuesday, November 14, 2017

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:
This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Friday, November 10, 2017

Animal welfare law in Scotland

Daniel James Carr recently posted "The Historical Development of Animal Welfare Law in Nineteenth Century Scotland". The abstract:
This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Sunday, November 5, 2017

London's smoke regulation

The Court of Aldermen and Common Council of the City of London (1780)
Last week's Reviews in History posted a review by Elly Robson of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016, recently out in paperback). (For an earlier review see here.) From the review:
Cavert is particularly strong on the complex role of political and legal institutions – both local and national – in managing coal supply and regulating smoke. In his account, the politics of coal and smoke was a politics of governance. Chapter five, ‘Nuisance and neighbours’, deals with the legal category of ‘nuisance’ to cast light on how conflict over pollution was defined and mediated. In it, Calvert investigates a smorgasbord of relatively ineffective litigious avenues for pursuing redress against industrial polluters who infringed on royal or individual property and health. Law Reports form the mainstay of the chapter and Cavert’s frustration is evident when he describes searching for nuisance cases in Westminster court archives, including 10,000 pleas in King’s Bench, as akin to ‘looking for needles in large and messy haystacks’. Yet he casts his net wide, examining an impressive array of London institutions, including the Fishmongers Company, the Court of Aldermen, and the Wardmote Courts. He consequently has an acute sense of the regulative capacity of different, interlocking jurisdictions, but does not present them as totalising in influence. Instead his emphasis falls on their limitations. Private contracts by landlords were far more effective than common law courts in excluding noxious trades from certain parts of the city, particularly in creating an elite non-industrial zone in genteel west London. This chapter tells us more about institutions and their limits than it does about the ways in which smoke sparked neighbourly negotiation. Royal and aristocratic attempts to limit air pollution in their vicinity have left a more prominent archival trace. However, further light may be cast on environmental conflict between more lowly urban neighbours through further examination of legal depositions, which tend to be well catalogued and have provided a rich lens for early modern historians examining rural disputes over resources.
A concern with governance recurs in part three, where several chapters examine the role of the state in regulating London’s coal supply and mediating the competing claims of civic governors, coal suppliers, the military, the urban poor, merchants, and industries. Efforts to ensure a constant flow of coal to the capital were more energetically pursued than attempts to alleviate pollution, because the former aligned with the priorities of the fiscal-military state: taxation, naval power, social stability, and economic development. Although there was never a state monopoly over the coal trade, the state gathered information through taxes on coal imports and intervened in markets by granting and revoking charters. Tensions could arise, however, between state revenues and economic growth, as merchants mobilised to lobby against rising coal taxes. Similarly, in times of war, able seamen transporting coal down the coast became a valued resource and were vulnerable to naval impressment, forcing the government to balance external military dangers with the threat that fuel scarcity posed to internal social order. 

Friday, November 3, 2017

Postwar America's greatest environmentalist

More on working-class environmentalism and the law (see, most recently, here): Jacobin recently ran a piece by Connor Kilpatrick claiming that "Postwar America’s greatest environmentalist was a labor leader". There's a lot here also about politics, religion, climate skepticism and more. Some excerpts:
Today, the AFL-CIO lobbies Congress to pass the Keystone XL pipeline while noted NASA climate scientist James Hansen, one of the first to link global warming to fossil fuels, is repeatedly arrested for protesting such projects. And while in 2017, the idea that the interests between wonky environmentalists and jobs-focused trade unionists would diverge seems like common sense, it’s only because the bad guys won.
But it wasn’t a preordained victory. For nearly a decade in the 1960s and ’70s, environmentalism seemed to be on the cusp of a popular reckoning against the powers of capital. And it found an ally in the labor movement which, for a few years, looked like it might be able to not only cling to life but find a way back into the heart of American society.
[Tony] Mazzocchi and his union, the Oil, Chemical and Atomic Workers International (OCAW), were the primary muscle behind the 1970 Occupational Safety and Health Act (OSHA), signed into law by Richard Nixon. Looking back on that victory, which mobilized both labor and the burgeoning environmental movement, Mazzocchi said: “We have demonstrated that an unpopular idea can be generated into a powerful political program that’ll reignite the consciousness of the American people.”

Tuesday, October 31, 2017

Colonial aspects of international environmental law

Signing the International Convention for the Regulation of Whaling, 1946
Douglas de Castro recently posted "The Colonial Aspects of the International Environmental Law – Treaties as Promoters of Continuous Structural Violence". This is a topic that has come up before in work by Yoriko Otomo and others. De Castro's abstract:
The formation of international institutions in the twentieth century occurs under a scenario marked by the rule of colonialism and imperialism. Thus, instead of reducing inequalities in the world system, international institutions reproduce a prevalent logic of material and subjective discrimination based on a colonialist ideology marked by violence, which is communicated in a certain way so that it can justify its importance and legitimacy. The colonial violence is perpetuated under the form of symbolic violence manifested in the language that imposes a universal meaning and systemic violence that manifests itself in the "perfect" functioning of the world economic and political system as the ultimate form of development. One of the perverse and subtle dimensions of this violence is observed in the emergence of the International Environmental Law in terms of metanarratives that excludes minorities and perceptions other than the ones propagated by international institutions. The main objective of this article is identifying the dynamics in the formation of environmental treaties leading to standard results of discursive practices that feeds the process of dependence and legitimation marked by colonial ruling and structural violence. The methodological approach relies on the critical theory tenets to expose the non-emancipatory features of the current International Environmental Law by the application of the socio-legal approach to the treaties that consists of the text analysis (law), subtext (the moral aspects of the law – deep or implicit meanings), and context (the undeniable connection between law and reality). The empirical dimension is developed with the help of the computer assisted qualitative data analysis software (CADQAS) called ATLAS.ti.

Sunday, October 29, 2017

Policy symbolism and regulatory standardization

Toronto Terminals Railway Central Heating Plant, 1929
Working through my backlog, I recently came across Owen Temby's 2015 article in Planning Perspectives, "Policy symbolism and air pollution in Toronto and Ontario, 1963–1967". The article has an interesting take on the secular movement of environmental regulation from the local level to higher levels of government. The argument that industry had more influence at the provincial level than at the municipal level is interesting since environmental groups are also often assumed to prefer higher levels of government, where they can better concentrate the diffuse environmental interests of the public. The article also cuts against the assumption that local regulation was relatively weak, and that the national-level regulation of the 1960s and later was some kind of victory for environmental interests. Food for thought.

The abstract:
In 1967, jurisdiction over clean air policy in Toronto and the rest of Ontario's municipalities was transferred to the provincial government. Even though the municipalities had obtained extensive authority to regulate air pollution within their own boundaries nine years earlier, the vast majority (apart from Toronto) had not developed clean air programmes. Yet air pollution was a highly salient issue that aroused considerable public attention and local activism. This paper provides an account of the provincial takeover in air pollution, focusing on two factors enabling the Ontario government to pass two statutes transferring authority from municipalities to the provincial Department of Health. First, despite resistance in Toronto, the policy change was favoured by industry, which had more influence in the provincial government than across municipalities. Second, the inherently symbolic features of clean air policy allowed the provincial government to satisfy public demand for action while not appreciably creating more stringent regulations. These findings are consistent with studies of US clean air policy displaying a similar tendency among industry to support regulatory standardization across broad political scales.

Thursday, October 26, 2017

Aboriginal water rights

Aboriginal men obtain water from mallee root at Yalata in South Australia, 1981
(National Library of Australia)
Peter D. Burdon, Georgina Drew, Matthew T. Stubbs, Adam Webster, and Marcus Barber recently posted "Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law". The abstract:
This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Tuesday, October 24, 2017

The Cold War context of "risk"

The Journal of Policy History recently published Linda Nash's "From Safety to Risk: The Cold War Contexts of American Environmental Policy". From the introduction (notes omitted):
The late twentieth century marked the rise of “risk society,” to use Ulrich Beck’s well-known term. In Beck’s account, the seemingly endless proliferation of material risks to health and environmental integrity is the outcome of late capitalist modernization, a proliferation that society’s institutions are completely unable to control or address. But without disputing the fact that industrialization has introduced a multitude of new threats to both bodies and environments, their conceptualization as “risks”—rather than merely as “dangers”—was more than a choice of words; it marked both an important policy change and a crucial cultural and political shift.
The dominance of risk discourse in environmental and health policy has not gone unchallenged. Since its inception in the 1970s, the assumptions and methods of regulatory risk assessment have been critiqued and interrogated from a number of perspectives. The social science literature on the topic is vast, much of it quite nuanced and attuned to the social, cultural, and political contexts that structure both lay people’s and experts’ perception of risk. But most who write about risk do not seriously question the term itself, nor do they consider its history. To the contrary, most scholars treat the language of “risk” ahistorically, often conflating “risk” with any kind of danger. Existing historical treatments have been narrowly framed as studies of a single area of federal law and policy. In these accounts, the rise of risk is portrayed either as a necessary maturation of environmental policy that was driven by greater understanding of the issues and improvements in science and technology, or, alternatively, as a triumph of industry and business-friendly politicians in opposing federal regulations. In all these accounts, the focus has been on government actors and, to a lesser extent, industry representatives.
This article builds upon the existing historical work but offers a somewhat broader institutional and intellectual history of risk in the postwar period, drawing particularly on scholarship that has emphasized the role of the Cold War in shaping American social and political thought across the second half of the twentieth century. Rather than locating the shift toward risk in techno-scientific developments or solely in conservative politics, I emphasize the role of intellectuals committed to new modes of formalized decision making and their influence among a new generation of agency managers. Scholars of environmental politics have paid little attention to the intellectual contexts that influenced the development of environmental policy. At the same time, historical accounts of systems analysis and its key institutions have emphasized their influence in defense rather than domestic policy, while their impact on environmental policy has been left almost completely unexplored.
Moreover, when the institutional and intellectual contexts of risk discourse are examined, it emerges not as a logical response to advances in science or technology, nor as simply a response to the challenges of “modernity”; rather, it depended upon the particular political and material forms that modernity took in the post–World War II United States. While acknowledging that politics played an important role in the ultimate adoption of the risk framework, the core of my argument is that risk thinking marked a radical departure from previous approaches to environmental regulation—from an approach based in biology and assumptions about human rights to one based in economics—and that the roots of this shift lay in Cold War defense planning and the insular academic and intellectual worlds it spawned.

Sunday, October 22, 2017

Drinking water standards

Yesterday's This Day in Water History had this quote from the AWWA's Water Quality and Treatment (3rd ed., 1971) (most comments removed):
“On October 21, 1914, pursuant to the recommendation of the Surgeon General of the Public Health Service, the Treasury Department adopted the first standards for drinking water supplied to the public by any common carrier engaged in interstate commerce. These standards specified the maximum permissible limits of bacteriological impurity, which may be summarized as follows:

  1. The bacterial plate count on standard agar incubated for 24 [hours] at 37 C was not to exceed 100/cc.
  2. Not more than one of the five 10-cc portions of each sample examined was to show presence of B. coli.
  3. The recommended procedures were those in Standard Methods of Water Analysis (APHA, 1912).

These standards were drafted by a commission of 15 appointed members. Among the members of this commission were Charles Gilman Hyde, Milton J. Rosenau, William T. Sedgwick, George C. Whipple and C.-E. A. Winslow, names well known to those who have studied early developments in water treatment.
Though not a part of the standards, the accompanying first progress report is very interesting as it provides insight into the commission’s deliberations on other problems. There appears to have been considerable discussion on whether the standards should also state that the water shall ‘be free from injurious effects upon the human body and free from offensiveness to the sense of sight, taste, or smell’; whether the quality of water required should be obtainable by the common carriers without prohibitive expense; and whether it would be necessary to require more than a ‘few and simple examinations to determine the quality of drinking water.’”
US Public Health Service Hygienic Laboratory, c. 1930

Thursday, October 19, 2017

Bevin Boys - WWII coal conscription

Bevin Boys report for duty in 1943 (Express)
The blog "ART and ARCHITECTURE, mainly" earlier this week had an interesting post on something I knew nothing about, despite my once-future career as a military historian. It seems that Britain conscripted nearly 50,000 men to work in its coal mines, in place of the military service, during the period 1943-48. From the blog:
Coal was essential for military production during WW2; somehow Britain had to match the quotas needed to keep fact­ories churn­ing out the munitions required at the front. And as Britain was unable to import coal in wartime, the production of coal from local mines had to be increased. But how? 36,000 miners were already cons­crip­t­ed for army duty and had left their collieries.
Ernest Bevin, wartime Minister of Labour and National Service and a former Trade Unionist, believed the short­age could be remedied by using conscripted men to fill the vacancies in the mines, keeping production at the rates requir­ed. In Dec 1943 he announced a scheme in Parliament. 
A ballot would take place to put a fixed perc­ent­age of cons­cript­ed men into the underground collieries rather than into the armed services. “We need 720,000 men continuously employed in this industry. This is where you boys come in. Our fighting men will not be able to achieve their purpose unless we get an adequate supply of coal.” Any refusal to comply with the Direction Order would result in a heavy fine and/or imprisonment under the Emergency Powers Act in force back then.
There's lots more on the story at the blog, worth a read.

Tuesday, October 17, 2017

Labor unions and forest protection

The connections between working-class environmentalism and environmental law is an understudied theme that I've had occasion to highlight before (e.g. here and here and in my forthcoming article on historical analysis in environmental law). Last year I noted that Erik Loomis won an award for his article, "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948". Now Robert Walls has a review of Loomis's book, Empire of Timber: Labor Unions and the Pacific Northwest Forests (Cambridge UP, 2015), for Environmental History. From the review:
Focusing on everyday labor and the designs of union activists, Loomis provides a complex portrait of how the industry’s base attempted to advance its goals of securing both sustainable forest resources and health and safety protections for men and women in an often dangerous workplace. The result is an informed analysis of labor’s successes and failures, one that broadly encompasses the radicalism of the Industrial Workers of the World (IWW), the challenge of the International Woodworkers of America (IWA) to midcentury forestry policy, and organizing efforts by countercultural reforestation cooperatives in the 1970s to oppose herbicide exposure.
Drawing productively on Thomas Andrews’s notion of “workscapes” and Rob Nixon’s concern with “slow violence,” the author demonstrates how the IWW, and the industry-sponsored Loyal Legion of Loggers and Lumbermen, initiated reforms to an increasingly industrialized work environment that punished bodies through the speed of production or the creeping pathology of disease from poor camp sanitation. A more holistic approach to the “total work environment” (p. 133) was later adopted by the IWA to moderate the debilitating impacts of postwar production technology; the union marshaled evidence from scientific sources and eventually called upon Occupational Safety and Health Administration regulations to combat the effects of new ailments, such as the auditory and neurological consequences of prolonged chainsaw use and the toxic impact of chemicals, such as pentachlorophenol, used in mills.
Loomis’s description of union critiques of industrial forestry’s destructive practices—decades before the modern environmental movement—is equally illuminating.

Sunday, October 15, 2017

Colorado water law yet again

Colorado water law continues to spur scholarship. The recent issue of Environmental History has a review by Michael Weeks of  Robert Crifasi's A Land Made from Water: Appropriation and the Evolution of Colorado’s Landscape, Ditches, and Water Institutions (University Press of Colorado, 2015). From the review:
While the book presents no definitive argument, Crifasi is skeptical of claims that water management in the West has been synonymous with concentrated power. Rather, his often meandering narrative suggests that water developed roughly along practical and evolutionary lines, with users and institutions responding logically to changing water needs.
Most of the text centers on the period from Colorado’s 1858 Gold Rush to the early twentieth century. Heavy doses of environmental determinism appear throughout. Crifasi argues that failed adventures in ditchdigging and the need to move water across property lines pushed farmers to enlist the aid of the territory/state of Colorado to form water districts and employ water commissioners and state engineers to oversee water management. Shared need propelled farmers to pool their resources to form mutual irrigation companies. The evolution of Colorado’s Doctrine of Prior Appropriation was a commonsense response to shared need that enabled users to quantify and prioritize water rights as well as prevent property owners from hoarding the resource. In Crifasi’s telling, even corporate attempts to monopolize and privatize water in the late nineteenth century were a natural part of the region’s agricultural evolution since concentrated capital propelled the development of sophisticated canals that could bring uplands into production.
One of Crifasi’s most intriguing, yet underdeveloped sections addresses water measurement and distribution. Employing William Cronon (Nature’s Metropolis, 1991), he argues that for water to be fairly distributed in an arid climate, it had to become a commodity that could be broken down into discrete measurable units. This meant water users had to translate malleable units such as the miner’s inch into standardized ones such as cubic feet per second. It also explains why users employed Colorado State Water Engineers to monitor stream measurements, water priority, and the carrying capacities of canals and ditches, as well as why the state agricultural college produced some of the nation’s first irrigation engineers. With a fine attention to detail, Crifasi then shows how water, once commodified, enabled irrigation companies to call for water releases based on their shareholders’ water rights, the priority of their holdings, and the availability of the resource.
Within these strengths of the book lies two of its weaknesses.

Friday, October 13, 2017

The political ecology of land reclamation in the Veneto

Environmental History recently published Elisabetta Novello and James C. McCann's "The Building of the Terra Firma: The Political Ecology of Land Reclamation in the Veneto from the Sixteenth through the Twenty-first Century".  The abstract:
The 1963 Vajont disaster and the devastating floods that hit the Veneto as well as other areas of Italy in 1966 brought about a significant revision of the policies on soil defense and civic protection. This was the last step in a long process of environmental management intending to build a balanced human-environmental system from the early modern period to the present. This essay explores the changing political ecology of soil and water management in the Veneto region in northern Italy. More specifically, the study traces the evolution of land reclamation works in the longue durée—in particular over the last five centuries—and the economic and social consequences of human actions on the territory. In order to fully outline the policies adopted in different historical periods, it is necessary to understand how the concept of land reclamation changed and gradually came to include drainage, hygienic, agrarian, and environmental factors, with attention paid to the specific ecologies of plains, mountains, and lagoon areas. In this long process, the changing relationships between landowners, farmers, and the state have altered human/natural interactions, with implications for land and water use.
Regional Land Reclamation Museum of Ca' Vendramin 

Wednesday, October 11, 2017

Water management and American liberalism

Water Alternatives recently published a review by Joe Williams of JJ Schmidt, Water: Abundance, Scarcity, and Security in the Age of Humanity (NYU Press, 2017). From the review:
The central argument – which might rankle were it not so meticulously made – is that as critical hydro-social scientists we have been getting things wrong for years. Schmidt contends that the old story about the separation of society and nature under modernity and the entrenchment of binary Enlightenment thinking does not apply to water management. The conceptual starting point of many critical scholars, of the transformation of naturally occurring and materially messy 'water', to the industrial product 'H2O', delineated, separate from nature, is, according to Schmidt, a false premise. The logic of water management conceived in the United States in the late 1800s, that has since spread across the world, has instead always connected human society, through water, to the land and geological history in particular and politically significant ways. "The difficulty", he argues, "is not a society/nature dualism or even unique human agency. Rather, the problem is the historical attempt (and ongoing consequences) of a failed strain of social science in the United States that sought to do away with the society/nature dualism" (190). This philosophy of water, through which American (and now global) societies are intimately connected to the land, is given the conceptual handle of 'normal water'. By this, Schmidt refers to the "program of bringing water’s social and evolutionary possibilities into the service of liberal forms of life" (6). Normal water, then, describes a normalised and entrenched set of socio-cultural practices, economic conventions, technological and institutional structures, and geological processes, that link together human society, biological life and planetary evolution under the logic of liberalism. The book traces the development of normal water through its inception at the beginning of American expansionism, its internationalisation under post-war development, and into the Anthropocene.
The political, techno-institutional and conceptual emergence of normal water, according to Schmidt, is premised on three assumptions: "that water was once abundant, that it has now become scarce, and, as an outcome of mismanaging scarcity, that water is now an issue of security" (41). The book is correspondingly structured into four parts. Part one, Abundance, concerns the framing of water as a resource central to the development of American society. It focusses on several key figures associated with the Washington DC-based Cosmos Club around the end of the nineteenth century and beginning of the twentieth, notably W.J. McGee and John Wesley Powell. Water was seen by these men as having geological agency that, if combined with human agency, could form the basis of the most advanced form of liberal society. The driving principle of normal water in the era of abundance, Schmidt says, was that the agency of water could be "synced with the coevolution of American society and the mutual adjustments that water and society made to each other" (79). In an attempt to cement American independence from European colonialism, W.J. McGee even proposed that currency should be tied to water rather than the gold standard. In this respect he was unsuccessful, but the corresponding principle that water was a public good that should be managed for 'the people', Schmidt argues, has formed the bedrock of normal water. 

Monday, October 9, 2017

Environmental timelines

A while back Environmental History carried a review by Daniel Simberloff of Ian Rotherham's Eco-history: An Introduction to Biodiversity and Conservation (White Horse Press, 2014). Simberloff notes:
The high point of Eco-history is a remarkable 42-page “Timeline,” detailing in linear fashion 224 key points in the history of British nature conservation from AD 1000 to 2000: laws especially, but also extinctions, introductions, establishment of nature reserves and environmental organizations. Rotherham concisely lists the impacts of each event, with further explication for about half of them. This section alone could be published as a short book that almost any environmental historian would value.
I don't think they're related, but there's also a very elaborate website called "Environmental history timeline", itself packed with little known nuggets of environmental-legal history, such as the fact that in 1970 US President Richard Nixon "issued an executive order... requiring industries to obtain a federal permit before dumping wastes into U.S. waterways or face criminal charges. This was the beginning of the US National Pollution Discharge Elimination System (NPDES) permitting process." Or that in 1779
Johann Peter Frank (1745-1821), writes A Complete System of Medical Policy in Germany advocating governmental responsibility for clean water, sewage systems, garbage disposal, food inspection and other health measures under an authoritative “medical police.” This idea was well received and influenced policy in Germany, Italy and other nearby nations. The authoritarian approach did not sit well with the French, British or Americans, where direct government controls developed only in areas of specific problems such as communicable disease and sanitation.
There's a lot more in this timeline, worth perusing and bookmarking.

Sunday, October 8, 2017

TVA and the Grass Roots

The Tennessee Valley Authority continues to produce environmental-legal history. Now (as we learned from Legal History Blog and Legal Theory Blog) Atif Ansar has posted "The Fate of Ideals in the Real World: A Long View on Philip Selznick's Classic on the Tennessee Valley Authority (TVA)". The abstract:
Philip Selznick’s first book —TVA and the Grass Roots: A Study in the Sociology of Formal Organization (1949) ("TGR")—tells the story of how the the ideals of the Tennessee Valley Authority (TVA) were thwarted by the reality of political pressures from its environment. Although TGR boasts one of the highest citations for a scholarly work in management, project management scholars do not cite it. Why has project management scholarship lost one of its founding classics? We investigate why TGR meets the criteria of a classic. We show that TGR’s focus on societal outcomes and ideals is an improvement on conventional project management’s focus on technical outputs and efficiency. Moreover, TGR contributes process theories — e.g., goal displacement and values depletion — for how major projects often fail. We conjecture that project management scholars ignore TGR because it represents uncomfortable knowledge. Project management discipline is in a crisis. We call for a humanist paradigm shift.
For more on the TVA, see here.

Friday, October 6, 2017

Empirical environmental law scholarship

Robert Fischman and Lydia Barbash-Riley recently posted "Empirical Environmental Law Scholarship". Beyond taking a look at the recent history of environmental law scholarship, the article is interesting for our purposes both for its view on what constitutes empirical scholarship and for its argument about the connection between descriptive and prescriptive work. The abstract:
The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental law. This Article fills that gap by assessing the state of environmental empirical scholarship, evaluating the strengths and weaknesses of published approaches to answering empirical questions, and recommending methods to advance the empirical research agenda.
Where environmental law scholarship has employed empiricism, it has done so mostly in the pollution control area. More empirical environmental law research relies on analysis of existing data than on the generation of new data, and experimental treatments are completely absent from our review of the literature. One strength of the empirical work in environmental law is analyzing existing data to determine correlations using regression analysis and statistics. But empirical environmental law scholarship underperforms in offering policy prescriptions. This assessment of the field identifies several methods and sources of data that may prove useful in advancing and sharpening empiricism’s contribution to law reform and implementation.
(xkcd)

Wednesday, October 4, 2017

Animal colonialism

A little while back AJIL Unbound published a piece by Mathilde Cohen, "Animal Colonialism: The Case of Milk". The abstract:
Greta Gaard writes that “[t]he pervasive availability of cows’ milk today—from grocery stores to gas stations—is a historically unprecedented product of industrialization, urbanization, culture, and economics.” To these factors, I would add colonialism and international law; the latter understood broadly to include the rules considered binding between states and nations, transnational law, legal transplants, international food aid, and international trade law. Until the end of the Nineteenth Century, the majority of the world population neither raised animals for their milk nor consumed animal milk. Humans are unique in the mammalian realm in that they drink the milk of other species, including beyond infancy. With the European conquest of the New World and other territories starting in the Sixteenth Century, dairying began to spread worldwide—settlers did not set out to colonize lands and people alone; they brought with them their flora, fauna, and other forms of life, including lactating animals such as cows and sheep.

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 archive.org) 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: