In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation.
Wednesday, May 10, 2017
The law surrounding the health effects of tobacco are an important precedent for many environmental law issues (see here and here). Now Martin Olszynski, Sharon Mascher, and Meinhard Doelle recently posted "From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability". The abstract:
Thursday, May 4, 2017
A little while back Resources for the Future posted a paper by H. Spencer Banzhaf on the history of an economic idea with major implications for the way environmental law plays out (particularly when cost-benefit analysis is involved), "The Environmental Turn in Natural Resource Economics: John Krutilla and 'Conservation Reconsidered'". The abstract:
Environmentalism in the United States historically has been divided into its utilitarian and preservationist impulses, represented by Gifford Pinchot and John Muir, respectively. Pinchot advocated conservation of natural resources to be used for human purposes; Muir advocated protection from humans, for nature’s own sake. In the first half of the twentieth century, natural resource economics was firmly on Pinchot's side of that schism. That position began to change as the postwar environmental movement gained momentum. In particular, John Krutilla, an economist at Resources for the Future, pushed economics to the point where it could embrace Muir’s vision as well as Pinchot’s. Krutilla argued that if humans preferred a preserved state to a developed one, then such preferences were every bit as "economic"—either way, opportunity costs exist and economic choices must be made.
Tuesday, May 2, 2017
The EPA Alumni Association recently published online Protecting the Environment: A Half Century of Progress. There's an Overview, as well as seven reports on topics such as air pollution, water pollution, toxic substances, and so on. From the introduction:
Over the past half century, our country has made enormous strides improving the environment. The laws that were passed to protect the environment and the public policy decisions that were made have yielded substantial progress. The air is demonstrably cleaner, our waterways are getting cleaner, our drinking water is safer, there are lower levels of exposure to toxic chemicals affecting people and wildlife than would have occurred, toxic waste sites are being cleaned up, and millions of acres of the most scenic and valuable parts of our country’s landscape — parks, wilderness areas, and wildlife refuges — are being protected.
None of this has come easily. There have frequently been significant costs. The decision-making process has often been protracted — sometimes by lengthy litigation. Still the progress is undeniable.
This progress is a result of laws that Congress passed and federal, state, tribal, and local agencies implemented. It is a result of investments of government and private sector dollars and the hard work of many communities, companies, and citizens across the land. They have reduced their environmental footprint and improved the way they do business and live their lives. It is the result of technological and policy innovations and the entrepreneurial spirit built into the DNA of the American people. Most of all, it is the result of Americans’ ongoing support for clean air and water, as we recognize that protection of public health and the environment benefits millions of our fellow citizens.
It is essential to understand this history and the lessons and insights learned if we as a country are to tackle some of today’s formidable challenges, such as:
- the adverse impacts of climate change,
- the effects of nonpoint source (runoff) pollution on our waterways,
- issues raised by changing technology, such as biotechnology and nanotechnology, and
- safeguarding the natural resources that are the foundation of our economic and recreational activities.
Monday, May 1, 2017
Angela Fernandez recently published a review of Robert Deal's The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....)
Sunday, April 30, 2017
Robert Fischman recently posted "Wringing Wonder from the Arid Landscape of Law". The abstract:
Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance of exogenous preference accounting as a means of identifying the public interest. Instead, often employing methods from the humanities, Wilkinson promoted planning as a deliberative, value-shaping process for crafting resource management objectives. His scholarship of the past thirty years redefined the relevant inquiries for public land law scholarship. In particular, he established bioregionalism, time, culture, and wonder as place-building concepts essential for translating justice and equity into public natural resources decisions.
Friday, April 28, 2017
While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.
So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity....
Thursday, April 27, 2017
The new issue of American Historical Review has a review by Christine Corton of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016). Corton writes:
Cavert looks at the early legal debates, many initiated by personal complaints from Elizabeth I and Charles I, aimed at limiting smoky industries located near the Royal Palaces. Charles II shared his father’s dislike of coal smoke, but “measures against it were limited, local, sporadic, and rearguard” (190), not least because Charles was more interested in projects outside the capital city in Windsor or Greenwich. Such preferences marked the failure of earlier attempts to limit smoky industries within London.
The situation changed gradually as local magistrates became more interested in cleaning London’s air to benefit health and to protect buildings. But these early attempts to legislate started a pattern that was to be followed during later centuries as attempts to reduce smoke failed to be passed into law. For many people, a major part of the problem was that the smoke pouring from workshops signified industrial success and full employment, just as smoke issuing from domestic chimneys registered prosperity and cozy domesticity, a relationship only hinted at in Cavert’s book.
Other, wealthier individuals also tried to limit the number of smoke-emitting industries located near their own dwellings. New developments in the west of London, such as Covent Garden, prohibited smoky trades from the outset in order to attract a higher class of resident. Urban settlements created for and by social and political elites partly explain why London’s East End suffered more from the West End’s smoke, as the vapors from the increasing number of domestic dwellings were blown eastward by the prevailing winds.
Wednesday, April 26, 2017
The journal Isis recently published an article by Peter Alagona, "Species Complex: Classification and Conservation in American Environmental History". I heard Peter give a fascinating talk on this at a conference a while back, in which he explained that while scientists don't really have a good definition for what a species is, the law (e.g. the US Endangered Species Act) requires organisms to be classified into species, thus driving this seemingly "scientific" endeavor. The article abstract:
How does the classification of biological organisms shape efforts to conserve them? This essay addresses this key question through the scientific, administrative, and legal histories of steelhead and rainbow trout. Members of the diverse salmon family, these two fish have different life histories and physical appearances, but since the 1930s scientists have considered them the same species. Over the past 150 years, however, their histories diverged. Today, rainbow trout are bred by the millions in hatcheries and are among the world’s most common and widespread fish, while steelhead are listed as threatened or endangered all along the West Coast of the United States. Their remarkable story shows that conservation is not merely a political struggle over things that exist in nature; it is a perennial competition to prove the existence and define the very nature of those things that are the focus of such struggles. Biological taxonomy and classification are central to these debates, as they are to environmental history and the history of science more generally.And some of the legal history in the article:
Tuesday, April 25, 2017
The latest Environmental History has a review by David Rich Lewis of The Size of the Risk: Histories of Multiple Use in the Great Basin by Leisl Carr Childers (U. Oklahoma Press, 2015). Lewis writes:
Leisl Carr Childers’s book appeared at an opportune moment, just as debates over federal management of western lands roiled the national news. The takeover of the Malheur National Wildlife Refuge in Oregon, the armed standoff over grazing rights at Cliven Bundy’s Ranch in Nevada, and the ensuing federal criminal prosecutions highlight the larger critique of federal authority in the West. Two-thirds owned by the federal government and perceived as an unpopulated wasteland that defied Congress’s raft of land disposal acts, the Great Basin is, in Carr Childers’s estimation, the “bellwether for federal land management policy” (p. 7). She explores how “multiple use” emerged in the twentieth century as a way to give the nation’s unclaimed public domain a human purpose, utility, and identity separate from its ecology. This book is not just a primer on land management policies—although it certainly provides outstanding coverage of that—but one deeply rooted in cultural and environmental history, using the tools of oral and public history to trace the intersecting activities of people and their different land uses as these federal policies evolved over time.
Multiple-use management begins with the 1934 Taylor Grazing Act that allowed western ranchers to continue their “accustomed use” of the range without purchase. Having already developed their own water sources and rights, the creation of grazing districts legitimized ranchers’ activities and made the surrounding public range their liminal property. Ranchers reluctantly acceded to the political organization and fees, assuming their accustomed use rights would endure as the activity best suited to these arid lands. At the same time, progressive land managers saw grazing as just one of many possibilities, a stop gap until higher uses (or disposal) of the land occurred. Ranchers, then, assumed an unseen risk in a policy world dictated by different visions of their land and a belief in use for the greater good.
Monday, April 24, 2017
recently compiled a list of books on environmental law recommended by other professors for incoming law students with an interest in the field. The results are all histories in one way or another:
- The favorite: Jonathan Harr's A Civil Action.
- The storytellers: Zyg Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River and Oliver Houck's Taking Back Eden: Eight Environmental Cases that Changed the World.
- Houck's and Richard Lazarus's Environmental Law Stories.
- Lazarus's The Making of Environmental Law.
- Gerald Stern's The Buffalo Creek Disaster.
This is obviously a very American list and one with a very recent focus. Anyone have any other suggestions?
Sunday, April 23, 2017
The latest issue of Environmental History just arrived, leading with an environmental-legal history article, M.X. Mitchell's "Offshoring American Environmental Law: Land, Culture, and Marshall Islanders’ Struggles for Self-Determination During the 1970s". The abstract:
This article explores the impact of environmental law in US-controlled Micronesia. Historians have suggested that US environmental legislation and legal activism during the 1960s and 1970s often overlooked issues of environmental racism and injustice. This article establishes the importance of these emerging environmental laws for Marshall Islanders living under American rule and subjected to the harms of nuclear weapons testing. In 1972 the displaced people of Enewetak Atoll—a former nuclear test site—sued the United States hoping to stop a new program of conventional weapons testing on their badly contaminated ancestral atoll. The capacious concept of the environment used in the National Environmental Policy Act of 1969 and the statute’s ambiguous territorial reach offered islanders important new opportunities to articulate their environmental values and to further their struggles for self-determination over ancestral lands and waters. This article argues that environmental law transcended the artificial territorial boundaries between the United States and its Pacific dependencies, opening up an important new venue of negotiation and conflict over the scope and environmental footprint of US offshore power.
Test of hydrogen bomb at Enewetak, 1952
Friday, April 21, 2017
H-SHGAPE recently published a review by Nancy Murray of William O'Brien's Landscapes of Exclusion: State Parks and Jim Crow in the American South (U. Mass. Press, 2015). Murray writes:
Advocates for wilderness recreation viewed national parks as a means to prevent black criminality. As early as the 1920s, officials argued that recreational areas and parks for African Americans would help to address stereotypical problems of crime and juvenile delinquency. In October 1925, while introducing a speaker at the Twelfth Recreation Congress in Asheville, North Carolina, Chairman Robert Lassiter stated that, “with proper attention to recreational facilities, they [African Americans] will make good citizens. Improper attention to that, and neglect and abuse of it, will make a criminal population” (p. 34). These assumptions about black criminality knew no color line. The following year, Ernest Attwell, director of the Parks and Recreation Association (PRA) Bureau of Colored Work and a Tuskegee Institute graduate, reiterated Lassiter’s views.
O’Brien’s book spans a period of time beginning with the origins of state park development in the 1930s to the turbulent civil rights era in the 1960s and relates how the development of state parks reflected the political and racial conflicts of these decades. Throughout, Landscapes of Exclusion emphasizes how local, state, and federal agencies adhered to what was called “customary” practices to justify using public funds to build and maintain segregated state parks. By the 1930s and 1940s, even as state park officials acknowledged African Americans’ need for state parks, Jim Crow laws and the hostility of white residents meant that most southern states refused to provide them.
After World War II, in the face of mounting challenges to segregation, southern states proposed a more expansive network of segregated parks for African Americans and the leasing of whites-only parks to private entities in an attempt to prevent integration. Despite these attempts to preserve Jim Crow, civil rights activists nonetheless persisted. In 1951, four African American beachgoers were denied entry into Seashore State Park on Cape Henry in Virginia. When attorneys from the National Association for the Advancement of Colored People (NAACP) filed a lawsuit, the Virginia Department of Conservation offered to build a park for African Americans near Seashore State Park with similar amenities. When the NAACP rejected this offer, they filed suit in Tate v. Department of Conservation.
Thursday, April 20, 2017
The always vigilant Rechtsgeschiedenis Blog recently posted on the Oxford Libguide on English legal history, noting that it surprisingly has a prominent section on Forest Law. The guide explains the subject:
Generally used to designate the legal regime following the Norman conquest (or at least from temp Henry I 1100): "... the subjection of ... vast tracts of forest land to an alien and oppressive "forest law" protecting the royal hunt" ...[ Baker, Introduction to English Legal History (4th edn 2002), 12[
It raised considerable problems of rights of ownership: for example, it was possible to be the legal owner of land within the designated area of a forest, and yet not be able to "harvest" its produce, either by hunting wild game or felling timber.
Already such a source of grievance to be the subject of clauses in the first attempt to limit the royal power of King John, by 1217 had become the subject of a separate Charter (of the Forest). The arrival of this shorter charter was what lead to the Magna Carta being so called.
The forest law was maintained by specific officers (such as wardens, verderers, and foresters) and with two principal courts hearing charges of breach of the laws, the courts of attachment and the forest eyres.
Among the online resources noted by the guide are John Manwood's [apparently his real name] 1598 Treatise and Discourse on the Lawes of the Forest [the 1717 edition is here], Jane Winters's essay on Forest Law, and the above image of the 1225 Forest Charter granted by Henry III, one of three surviving originals.
For more on British forest law, see here.
Wednesday, April 19, 2017
Tuesday, April 18, 2017
|Bears Ears National Monument designated by President Obama|
First, Yoo and Gaziano seek to re-frame the history and past judicial decisions on the Antiquities Act in order to make an argument about the purpose of the Act. The authors raise the argument that the Act has been “abused” for the purpose of effectively creating new, large national parks, and that the large size of some monuments designated throughout the Act’s history runs counter to the statute. Their claim purports to be rooted in textual analysis of the Act, but relies on an assumption due to the context of “earlier and contemporaneous bills” that would have “limited monument designation to 320 or 640 acres (page 3). The Act instead provides that monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Yoo and Gaziano posit that the lack of a size limit “provide[s] flexibility for special situations and not to allow a million-acre designation” (page 3). Contemporaneous history, however, also points to officials in the Interior Department who favored broad empowerment of the President to set aside public lands, and suggests that these officials had a hand in adding the Act’s more expansive language of “other objects of historic or scientific interest” to meet this goal. No court has ever invalidated a presidential designation of a national monument — from the Grand Canyon under Teddy Roosevelt (its status as a national monument, prior to conversion to a national park, was upheld by the Supreme Court against mining claims in Cameron v. United States), to the Giant Sequoia NM under Clinton (upheld by the DC Circuit in Tulare County v. Bush).
The purpose and context of the Antiquities Act, including congressional action and inaction over the past century, suggest that a one-way ratchet — presidential designation, with significant reduction or revocation only by Congress — is exactly what was intended. Congress was concerned that historical, archaeological, and natural or scenic resources could be damaged or lost, and devised a delegation to the President to act quickly when needed to preserve those resources, leaving Congress the opportunity to deliberate on a longer-term solution for the area in question, if it so decided. On 10 occasions, Congress has reversed those presidential decisions; far more often, it has concurred or built upon the President’s actions by expanding monuments or re-defining them as national parks. This is how the process is supposed to work. Antiquities Act designations do not, as critics say, cut off debate or circumvent the democratic process. They simply alter the status quo in favor of conservation — a precautionary approach. If Congress studies the matter and decides to change or abolish the monument to allow for different uses of the land, it has the power to do so through the usual legislative process; until that action is taken, objects of historic or scientific interest are protected.
Sunday, April 16, 2017
|Grand Canyon National Park|
The act has been used more than 150 times, by nearly every president, Republican and Democrat, from Theodore Roosevelt on, to protect hundreds of millions of acres for the inspiration and enjoyment of present and future generations. Five of the nation’s 10 most-visited national parks — Grand Canyon, Zion, Olympic, Teton and Acadia, each attracting millions of people a year — were first protected by presidents using the Antiquities Act.More on the current debate over the law soon.
Some dislike the law because presidents have tended to use it late in their terms to sidestep opposition to their designations. But would anyone today seriously question the wisdom of Theodore Roosevelt’s using the act to protect what is today the core of Olympic National Park in Washington two days before he stepped down in 1909? Or Herbert Hoover’s safeguarding what are now three national parks, including Death Valley in California (1.3 million visitors last year), in his last three weeks in office in 1933? Or Dwight D. Eisenhower’s setting aside what is now the Chesapeake and Ohio Canal National Historical Park (five million visitors last year) two days before John F. Kennedy’s inauguration in 1961?
Because these presidential actions change the status quo and prevent development, they have sometimes incited local opposition. But over time, the growing popularity of these places often led Congress to recast them as full-fledged national parks.
That’s what happened after Franklin D. Roosevelt established the Jackson Hole National Monument in 1943 on land fronting the magnificent Teton mountain range in Wyoming. Outrage ensued. Senator Edward Robertson of Wyoming called the president’s action a “foul, sneaking Pearl Harbor blow,” and locals led a cattle drive across the new monument in protest. But by 1950, the monument’s benefits to local life and the economy persuaded Congress to incorporate it into Grand Teton National Park, and President Harry S. Truman agreed. In 1967, Cliff Hansen, a leader of the cattle drive protest who became a United States senator, acknowledged he had been wrong to oppose Roosevelt’s action. He called the expanded Teton Park one of his state’s “great assets.”
Sunday, April 9, 2017
This Day in Water History recently reproduced a 1916 article from the Municipal Journal:
Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.Michael McGuire comments:
The typhoid fever epidemic in Milwaukee was caused by a city employee turning off the chlorine disinfection system for about 10 hours. The epidemic resulted in 513 cases and 59 deaths from typhoid fever. As filtration and chlorination became more widely installed to protect water supplies, it became harder for cities to claim that contaminated water supplies were not responsible for typhoid fever deaths. The combination of engineers wanting to do the right thing and lawsuits resulted in an accelerated introduction of the new technologies.
Monday, April 3, 2017
The issue of private property in water is a well-studied one, but usually in the context of systems based on appropriative rights. This Day in Water History reproduces a 1915 article from the Municipal Journal (I'm assuming it's not an April Fools joke) that shows that riparian-rights systems, usually thought of as common-property regimes, could be raise the same privatization-related issues typically identified with appropriative systems - overuse, concentration, and demands for public control:
Boston, Mass.-That the state’s water resources are being gobbled up by private interests and that unless some change of policy is immediately instituted Massachusetts will have to face a water famine is brought to the attention of the legislature in a report on the conservation and utilization of waters by the state board of harbor and land commissioners. The amount of water power used by manufacturers has increased enormously in the last few years. For instance, proprietors of Locks and Canals in the city of Lowell consumed in 1912 about 11,620 horsepower, developed from the Merrimac river, according to statistics of the United States Bureau of Corporations. A survey in 1915 by the harbor and land commissions shows that these same Locks and Canals now use 29,911 horsepower. The water used and wasted by municipalities is also mentioned in the report. The commission urges that a definite plan be laid out by the state for the control and conservation of the water resources. The Merrimac river is capable of further development, according to United States Engineer C. C. Covert of the Geological Survey, who is quoted as saying that, although the most favorable opportunities for storage on the Merrimac are being utilized, there are still many unutilized reservoir sites available. The commission on harbors and public lands holds that unless the state within a reasonably short time asserts a definite policy of control, the waters in the rivers and natural streams, which belong to the people of the whole state will be devoted entirely to private uses. In contrast to the situation in Maine, New Hampshire, Vermont, New York and the province of Ontario, where a conservation program is now under way, nothing at all has been done in Massachusetts. The control which exists of the water resources is divided among four or five different bodies, no one of which has complete authority. In the year 1912 the United States Bureau of Corporations made a tabulation which showed that 130,620 horsepower was owned by the larger companies in Massachusetts. The harbor and land commissions, canvassing the same people, have discovered that within the three years the total horsepower developed has increased to 264,152, Massachusetts manufacturers are now paying nearly $26,000,000 a year for the purchase of fuel for power purposes. Intelligent plans to avoid freshet damages and to store water for irrigation are also urged.
Friday, March 31, 2017
50 years since the Torrey Canyon oil spill off the coast of Cornwall, one of the worst oil spills ever. The disaster led to a series of dramas, not only oil slicks and dead wildlife, but (partly ineffective) bombings of the wreck by the British military, and the following legal drama (as reported by Wikipedia):
The spill also led to early legal scholarship on environmental law, including Albert Utton's 1968 "Protective Measures and the 'Torrey Canyon'" and Colorado water law scholar Ved Nanda's "The Torrey Canyon Disaster: Some Legal Aspects".
Claims were made by the British and French governments against the owners of the vessel and the subsequent settlement was the largest ever in marine history for an oil claim. The British government was able to serve its writ against the owners only by arresting the Torrey Canyon's sister ship, the Lake Palourde, when she put in for provisions at Singapore, four months after the oil spill. A young British lawyer, Anthony O'Connor, from a Singaporean law firm, Drew & Napier, was deputised to arrest the ship on behalf of the British government by attaching a writ to its mast. O'Connor was able to board the ship and serve the writ as the ship's crew thought he was a whisky salesman. The French government, alerted to the Lake Palourde's presence, pursued the ship with motor boats, but crew were unable to board and serve their writ.More importantly, the disaster led to a series of changes in international law, as told by the International Maritime Organization, including amendment of the International Convention for the Prevention of Pollution of the Sea by Oil and adoption of the International Convention for the Prevention of Pollution from Ships.
The spill also led to early legal scholarship on environmental law, including Albert Utton's 1968 "Protective Measures and the 'Torrey Canyon'" and Colorado water law scholar Ved Nanda's "The Torrey Canyon Disaster: Some Legal Aspects".
Tuesday, March 21, 2017
Keith Hirokawa recently posted "Contextualizing the Roots of Environmental Law". The abstract:
This review of Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–1970 (2009), considers an attempt to describe the law’s “environmental history” through a narrative account of incrementalism. The author’s deep research and skillful storytelling takes us into the struggles of early environmental advocates, who yearned to become citizens of a broader biotic community and catalyzed tensions between nature and politics and property. The author capitalizes on the co-dependencies of human and environmental sovereignty and reveals the continuous interplay of human action, nature, and legal evolution. Despite making tremendous discoveries about the emergence of environmental law, the book makes a further claim. The author suggests that most commentators erroneously focus on the environmental decade of the 1970s, instead of the roots that took hold and flourished in the post war period. In so doing, the author argues, most commentators fail to grasp the political, economic and environmental commitments made prior to the 1970s. This essay argues that although environmental law has always appeared at the crossroads of environmental challenge, economic needs, property, identity, and community, we cannot avoid the environmental law of the 1970s, when the convergence of disciplines informed our regulatory approach and when the immediate need for environmental quality became part of the law.
Monday, March 20, 2017
environmental dimensions of Philip Hamburger's revisionist account of the history of administrative law. Now Eric Posner points out some contemporary relevance of Hamburger's controversial views (thanks to Legal History Blog for flagging the post, and to Eric for approving the re-post):
Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?
Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.
I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.
In rereading Hamburger, I am struck by three themes, which resonate with our political times.
Friday, March 17, 2017
Robin Kundis Craig and Catherine Danley recently posted "Federal Fisheries Management: A Quantitative Assessment of Federal Fisheries Litigation Since 1976". The abstract:
When Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act in 1976, it intended the Act to operate largely without the courts. Indeed, since the statute’s enactment, the National Oceanic and Atmospheric Administration (NOAA) and the regional Fisheries Management Councils have published over 1700 regulatory actions in the Federal Register, but cases challenging fisheries management have been relatively limited.
Given how much fisheries management “flies under the courts’ radar,” so to speak, it is worth asking what kinds of cases do end up in the courts. This article presents an initial quantitative assessment of federal fisheries litigation since 1976 to begin to assess the role of the courts in federal fisheries management. It concludes first that the 1996 and 2006 amendments to the Magnuson-Stevens Act, each of which added enforceable ecological requirements, both increased the amount of environmentally-minded litigation brought under that statute. Nevertheless, contrary to many perceptions, fishermen always have been the Act’s primary litigants, arguably confounding Congress’s original intent for fisheries management.
Monday, March 13, 2017
Roman Yu. Pochekaev recently posted "'Water Law' as an Instrument of Russian Imperial Policy in the Central Asian Khanates". The abstract:
For more on natural resources law in imperial Russia see here.
Water has always been an important resource for Central Asian states and peoples. Different rulers at different times used water, and access to it, as an instrument of political and even military influence. When the Russian Empire expanded into Central Asia, seizing substantial parts of three central Asian khanates (Bukhara, Khiva and Khoqand) and established its own protectorate over these states, its also found that water was one of the most effective means to control the rulers and peoples of Central Asia. The use of water and irrigation policy as an instrument of rule was effectively used by the Russian Empire in its relations with the Central Asian khanates and this has already been the subject of investigation. This paper analyses the legal regulation of water use and the irrigation policy of the Russian Empire in Turkestan in order to influence the Bukharan Emirate and the Khivan Khanate during the epoch of the Russian protectorate (1870s–1910s). The paper demonstrates how the internal “water law” was a starting point in Russian policy towards Bukhara and Khiva, and shows that each subsequent stage was closely connected to the evolution of the “water law” in the Russian Turkestan. The sources are official documents (including legal acts) of the Russian Empire, correspondence of Russian and Central Asian statesmen, memoirs of contemporaries and the notes of Russian visitors to khanates (diplomats, engineers, etc.) who participated in the realization of Russian water policy in Bukhara and Khiva and could estimate its effectiveness.
|Irrigation map of Turkestan |
(Glavnoe Upravlenie Zemleustroistva i Zemledeliya, Otdel Zemel'nykh Uluchshenii 1914)
Sunday, March 12, 2017
|President Bush signs the UN Framework Convention on Climate Change in Rio, June 1992|
In 1987, President Reagan signed the Global Climate Protection Act into law, giving the EPA the lead agency role in developing and proposing a “coordinated national policy on global climate change.”
In 1992, President George H. W. Bush negotiated the landmark climate treaty the United Nations Framework Convention on Climate Change. Upon reaching the agreement, Bush EPA Administrator Bill Reilly wrote that a number of EPA programs would play “a key role in enabling the United States to meet the goal of the Climate Change Convention: to cut greenhouse gas emissions using a benchmark of 1990 levels.” For example, EPA’s Green Light Program which Reilly had initiated in 1991 gave birth to the Energy Star program in 1992, a voluntary program that helps businesses and individuals protect the climate through energy efficiency.
When the U.S. Senate ratified the Framework Convention in 1992, Senator Mitch McConnell said it was “a fine agreement.” The EPA assumed the duty of preparing the official U.S. Inventory of Greenhouse Gas Emissions to comply with the nation’s commitments under the treaty.More on conservatives and environmental regulation here and here.
Thursday, March 9, 2017
|Henrys Fork, Idaho|
This article examines an apparent irony in the environmental ethic of the contemporary American West. Much of the Interior West is dominated by a particular culture that is the product of Mormon settlement in the Salt Lake Valley and subsequent expansion throughout the region. The teachings of early Mormon leaders contained significant threads of what today would be recognized as environmentalism. Despite these teachings, and despite Mormons’ famously strict adherence to other theological tenets, the environmental ethic of the contemporary West is often perceived as anti-environment. Why would this culture, which holds so fast to its other religious teachings — including those teachings that for a time had significant and negative political, legal, and economic effects — reject this aspect of religious doctrine? Using the Mormon experience as a case study, this article argues that the contemporary West’s conservative environmental ethic is a tapestry woven from the interrelationships of legal regimes found and developed during western settlement, the cultural origins and destinations of the settlers, and the physical landscape itself. It is both what settlers found and developed upon arriving in the interior West that led to the region’s contemporary environmental conservatism.In other words, Long is arguing that environmental law shaped environmental attitudes (notes omitted):
We tend to think of law as following culture (or ethics, or morals) both temporally and substantively. But the relationship is instead recursive, with both law and culture emerging from and giving rise to the other. As we assess the validity of a particular legal landscape, we compare it to shared meanings to determine if it is both valuable and legitimate. At the same time, we assess the value and legitimacy of our shared meanings by comparing them to what the law says is appropriate.
So while the Mormon settlers.., arrived, from all over the world, with cultural meanings in tow, those meanings were both confirmed and influenced by the legal landscape the settlers encountered upon arriving in the [region].With regard to attitudes water among Mormon settlers in Idaho, Long argues:
When the Mormon (and other) agricultural settlers began arriving in the Henrys Fork region at the end of the 19th Century, they arrived in a place that already had a specific legal imprint placed upon it—both formally and informally. Whatever their origins, and many were only recent immigrants to the United States, their relationship with this new western landscape was already structured in a particular way. For several decades by that point, the custom, and then formal law, of the region was one that preferred the extraction or appropriation of water from natural water courses for its use elsewhere. Although all uses of water were limited to the extent they could be applied to a beneficial use, the beneficial uses of water were themselves constrained. In the Idaho Constitution, a hierarchy of beneficial uses was formalized, beginning with domestic uses, then agriculture followed by manufacturing, except in mining districts where mining superseded all but domestic uses.
Tuesday, March 7, 2017
|William Ruckelshaus, the first time around|
On behalf of a new group of scholars, the Environmental Data and Governance Initiative, I'd like to invite the participation of environmental historians in a a project we're undertaking. As part of a report we are preparing on the first 100 days of the Trump Administration, we're hoping to offer some historical and comparative perspective on what will have transpired. I'd welcome your help, first of all, with a review of the relevant historical literature. Either as "reply" to this post or through email, could you please send citations of insightful articles, book chapters or book--with a summary of contents and argument--on the following topics?
1. Accounts and analysis of the environmental dimensions of the U.S. presidential transition to Ronald Reagan
2. Accounts and analysis of the environmental dimensions of the Canadian transition to Stephen Harper
3. Nominations, with a citation, of any other environmental transitions of a federal government that you think pertinent
All replies and a summary are going to be posted in the new H-Commons list H-Envirohealth. If you prefer emailing, please send to email@example.com and/or firstname.lastname@example.org.
If you'd also like to get further involved with our group, please let us know. Plenty of good work to do, and we welcome new energy and ideas.
Chris Sellers for the Environmental Data and Governance Initiative https://envirodatagov.org/
After a pleasant interlude in medieval English forests, we return to recent history with a recent post by Craig Oren on RegBlog. After laying out some of the possible deregulatory moves we will see from the Trump administration, Oren takes us back in time:
We must remember 1981, when the Reagan Administration came into power. Its choice for EPA administrator was Anne Gorsuch [Neil Gorsuch's mother-DS], who had little experience in environmental matters. Lobbyists seeking deregulation initially had much influence on the agency. During her short-lived tenure, a draft emerged of proposed amendments that would have eviscerated the Clean Air Act, much to the horror of environmental groups. Gorsuch also repeatedly weakened EPA’s enforcement office. Gorsuch warred with the agency’s career staff: a number of high-level executives were transferred—and some lost their jobs altogether—as punishment for not being sufficiently compliant with the Administration’s priorities.
Gorsuch at her farewell news conference
Capitol Hill looked unpromising, too, during the Reagan years. Then-Representative John Dingell (D-Mich.)—a firm environmentalist, but also someone who was concerned with the interests of auto companies, which employed many of the constituents in his Detroit congressional district—joined with industry and Republicans to put together a package of weakening amendments to the Clean Air Act, including a rollback of auto-emission standards l. And a so-called regulatory reform bill, designed to hamstring agencies from protecting public health and the environment, seemed in 1982 to have a considerable chance for some time of being enacted.
Sunday, March 5, 2017
While we're on the topic, I missed this when it was posted a couple of years ago: Nicholas Robinson's "The Charter of the Forest: Evolving Human Rights in Nature" (in Magna Carta and the Rule of Law (Daniel Barstow Magraw et al., eds., ABA, 2014). The abstract:
Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.
Wednesday, March 1, 2017
Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):
The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.
|William the Conqueror, the Bayeux Tapestry|
Tuesday, February 28, 2017
|from Livre de la Chasse|
As there's a lot of interesting stuff here, I'll just quote a bit (omitting footnotes, text in brackets is my own). First of all, to clarify what a medieval "forest" was:
‘Forest’ in medieval England denoted a defined area of unenclosed land within which wild game, principally deer, along with wide swathes of its habitat were protected by forest laws for the benefit of the king. Medieval forests, however, could include “not only woodland, but also heath, pasture, meadow, and arable land, and even hamlets, villages, and townships.” Importantly, forest jurisdictions in England unlike those in Normandy could, and often did, extend outside the king’s own demesne land (the crown’s landed estate) onto privately held lands, acting as a type of economically restrictive land-use overlay on areas that remained subject to the common law as well.
Friday, February 24, 2017
forests and revolution in France, we now turn to a similar topic in Mexico. H-LatAm recently posted Timothy Lorek's review of Christopher Boyer's Political Landscapes: Forests, Conservation, and Community in Mexico (Duke UP, 2015). Some highlights:
Boyer begins in the 1880s and follows the thirty-year reign of Porfirio Díaz and his embrace of foreign capital investment and scientific expertise, exercised by the regime’s cadre of científicos. The rapid acceleration of land titling (the so-called disentailment of communally owned property) and privatization of terrenos baldíos (unoccupied public land) and resources spurred the growth of commercial logging to meet the demands of the expanding newsprint industry and railroads. Observing the growing corporate commodification of timber resources, Boyer shows how members of the intellectual elite organized for conservation of the woodlands through a “regime of scientific management,” premised on similar initiatives in Europe and the United States (p. 30). Chief among these early conservationists was Miguel Ángel de Quevedo, whose long career in public policy withstood political transitions and revolution. Quevedo and the early forest service viewed conservation as a scientific and rational practice best orchestrated by urban Mexico City elites rather than the inhabitants of the woodlands themselves. What little consideration his urban foresters did give to rural peoples such as the Rarámuri of Chihuahua or the Purépecha of Michoacán, Boyer argues, was to criticize them as backwards, wasteful, and an impediment to rational management.
Chapters 2 and 3 chart the rise of “revolutionary forestry.” A rich historiography exists on the Mexican Revolution (1910-17) and on the subsequent agrarian reform which continued until 1992. Article 27 of the constitution of 1917 cleared a path for two legal channels for securing land rights: the restitution of communal land (restauración) or the granting of parcels (ejidos) of public land for usufruct use (dotación). And yet, Boyer points out, few scholars have noted Article 27’s significance in mandating the state’s right to manage natural resources on behalf of the nation. This charge led to the postrevolutionary state’s partnership with Miguel Ángel de Quevedo and his determined application of rational conservation in forestry. Yet Quevedo and other conservationists’ preferences for a state-regulated management bureaucracy complicated indigenous land rights supposedly protected under the postrevolutionary state’s social agenda. For example, the Forest Code of 1926 required ejido and native communities to form producers' cooperatives whose timber harvests were guided by scientific management plans approved by the new forest service. Other elements of the code, such as the ban on hatchets for felling, had the arguably unintentional effect of restricting native access to cutting timber in favor of commercial operations. As Boyer shows, the new bureaucratic hurdles presented challenges for ejidatarios and native villagers in Chihuahua and Michoacán, who struggled to assert their rights over unscrupulous outsiders and, when that failed, resorted to clandestine logging and the black market.
Thursday, February 23, 2017
Though conservatism is today associated with anti-environmentalism (a trend with an interesting history); see also here and here), a growing body of work is digging into conservative and religious roots of American environmentalism. Last year we noted Dan Farber's post on American conservatism and environmentalism at Legal Planet; now comes the article: "The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century" (thanks to Dan Ernst at Legal History Blog for noting it). The abstract:
Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax.
This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil fuel industry. These forces may be abating, opening the door for a more vigorous debate about environmental policy within the conservative movement and in the broader public arena.