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.

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.

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.

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.

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

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.

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.

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.

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 

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.

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.

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.

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)

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.