Friday, December 28, 2018

Savagery, civilization, and property IV: The aboriginal property rights debate

In the last post in this series we saw how modern commons theory tracked many of the features of stadial theory. In this post I begin trying to uncover the routes by which the early modern theory reached modern thinkers on property.

The modern commons theorists discussed in the last post did not explicitly refer to the Enlightenment or Romantic thinkers whose theories may have influenced them. Yet the striking similarities between these two groups of theories, separated though they were by two centuries, seem to provide evidence of influence. It is likely that thinking in terms of civilizational stages was simply so deeply entrenched in the intellectual baggage of educated Westerners, whether through study of the classics, of Blackstone, or of Gibbon, that modern commons theorists replicated its patterns as a matter of course. Nevertheless, I suggest we can also trace more concrete lines of influence through the intertwined disciplines of anthropology and human ecology, as well as through the worlds of international development and conservationism.

Eleanor Leacock
An important branch of the field of anthropology’s research agenda was largely set in the mid-nineteenth century by stadial theory, and thereafter developed to a significant degree in dialogue with it. Anthropological works that clearly influenced modern commons thought, in particular those cited by Demsetz in his important 1967 article, were very much part of this dialogue, thereby infusing his work and that of others writing in the economic tradition with a large dose of stadial thinking.

The Victorian-era thinkers who strongly influenced anthropology in its founding era — Henry Maine, Lewis Henry Morgan, Karl Marx, and Friedrich Engels — were themselves influenced by the stadial theories of the late eighteenth century, and saw societies as evolving through modes of subsistence or production, viewed largely through the lens of property. But while Maine saw the transition from common to private property as a sign of civilization, Morgan, and, following him, Marx and Engels, saw this transition as a form of injustice and source of inequality (though perhaps a necessary one). 

Morgan, based on his knowledge of American Indians and reading of classical sources, argued that property was a key factor in the evolution of society as it progressed from a state of savagery (based on hunting) to barbarism (based on herding and farming) to one of civilization:
The idea of property was slowly formed in the human mind, remaining nascent and feeble through immense periods of time. Springing into life in savagery, it required all the experience of this period and of the subsequent period of barbarism to develop the germ, and to prepare the human brain for the acceptance of its controlling influence. Its dominance as a passion over all other passions marks the commencement of civilization. It not only led mankind to overcome the obstacles which delayed civilization, but to establish political society on the basis of territory and of property. A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of the mental history of mankind.
As twentieth century anthropology developed the tool of ethnographic fieldwork, the work of many anthropologists, particularly in North America, revolved around supporting or disproving Morgan’s evolutionary account, with one arena of contention concerning the question of whether “primitive” hunting societies had private property or not.

Friday, December 21, 2018

Coal as a green fuel

Earlier this year Environmental History published Germán Vergara's "How Coal Kept My Valley Green: Forest Conservation, State Intervention, and the Transition to Fossil Fuels in Mexico". Some excerpts:
This article explores how state policies and legislation of successive Mexican governments in the late nineteenth and early twentieth centuries sought to curb rapid deforestation by fostering the energy transition to fossil fuels (coal and oil) in industrializing regions of the country such as the Valley of Mexico and Monterrey.
Anthracite coal breaker and power house buildings,
Madrid, Mexico, circa 1935
In the 1850s, both conservative and liberal governments in Mexico took an interest in forest conservation. In 1854, during General López de Santa Anna’s conservative administration, the recently created Ministry of Development (Ministerio de Fomento) asked mining districts nationwide for information about the extension and characteristics of the forests being logged for mining. The government agency also inquired about local regulations governing forest exploitation and reforestation efforts. In 1857 the new liberal government, despite ongoing military challenges from conservatives, sent a memorandum encouraging state governments to enact legislation protecting forests. In typical fashion for Mexican liberals, the government not only delegated the responsibility to local authorities but also made clear that conservation measures should not interfere with the timber needs of industries and mines.
Calls for forest conservation became more common in the 1860s. Key institutional actors in Mexican science, such as the Mexican Society of Geography and Statistics (Sociedad Mexicana de Geografía y Estadística), began publishing significant work on forest conservation. In one editorial, the editors of the Boletín (the society’s publication) expressed alarm over rapid forest loss. Like Río de la Loza, they blamed factory owners and the indigenous population, who “cut and destroy their only patrimony,” although they also criticized owners of large estates (hacendados). The journal also published the work by conservationists such as Romero Gil, who drew from Alexander von Humboldt and Mexican mining engineers to argue that forests prevented drought and fostered human health. In one article, Gil offered an overview of earlier forest legislation and called for reviving provisions from colonial forest laws, particularly those relating to coppicing (horca y pendón). In an effort to inspire analysis and discussion of earlier legislation, the Boletín reprinted an 1845 Mexican forest code, one of the first issued in independent Mexico.
As coal production increased, it became clear to state officials that Mexico needed a modern legal framework to facilitate and regulate coal extraction. A heated debate broke out between those who argued that coal deposits ultimately belonged to the nation (following the tradition of the colonial mining ordinance, Ordenanzas de Minería) and those who defended the preeminence of private property rights. To a degree, the controversy was rooted in confusion over the natural composition of coal and other fossil fuels. For some experts, and seemingly many laypeople, the organic origins of coal and oil made them nonmineral. Critics of this position posited that although both were organic in origin, they had been formed by geologic nonorganic processes, thus qualifying them as minerals. Most experts agreed and considered both coal and oil as “fossil fuels” (combustibles fósiles). As such, coal and oil should fall under the old colonial tradition of state ownership that only governed minerals.
The matter was settled in 1884 when the federal government enacted a new mining code. The code’s authors were mostly interested in creating suitable conditions for Mexico’s industrialization and were perfectly aware that a key component of the project was the large-scale adoption of fossil fuels for industrial power. The new code recognized coal and oil as minerals (as under colonial law) but gave private owners full property rights to surface and subsoil mineral wealth. Thus the Mexican state relinquished its claim to being the ultimate proprietor of subsoil commodities, including coal and oil, and declared that private landowners could exploit those deposits without prior government authorization. The code also sought to stimulate coal and iron mining by exempting both from taxes for fifty years. It is important to note that scholars have often interpreted the mining code of 1884 as an attempt to attract foreign investment, overlooking its long-term effects on Mexico’s energy transition to fossil fuels. The code not only regulated the fossil fuel market; it created it. Beyond spontaneous market processes, it was lawmaking—that ultimate tool of politics and policymaking—that proved instrumental in Mexico’s transition to fossil fuels. The code remained the main legal framework for the coal and oil industry until the enactment of the Constitution of 1917.

Sunday, December 9, 2018

Savagery, civilization, and property III: The commons theorists

In the last post in this series, we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory.

Garret Hardinʼs “Tragedy of the Commons” illustrated its argument against common property with a parable of a common pasture.  While neither Hardin nor William Forster Lloyd, from whom he borrowed the story, argued that society does or should progress along stages of development, their descriptions of the common pasture echoed some elements of stadial theory: shepherds have no “property” in their pastures, a characterization consistent with stadial thinking (and clearly disproved by historical work on actual common pastures).  Such pastures are subject to overgrazing, as in the story of Abraham and Lot adduced by Dalrymple.  Moreover, Hardinʼs article echoed stadial theory at several points, such as when he writes that “the logic of the commons has been understood for a long time, perhaps since the discovery of agriculture or the invention of private property in real estate,”  or in his argument that increasing pressure on resources drives enclosure of the commons:
Perhaps the simplest summary of this analysis of man’s population problems is this: the commons, if justifiable at all, is justifiable only under conditions of low-population density. As the human population has increased, the commons has had to be abandoned in one aspect after another.
First we abandoned the commons in food gathering, enclosing farm land and restricting pastures and hunting and fishing areas.
Approximately contemporaneously with Hardin’s article, Harold Demsetz published his “Toward a Theory of Property Rights.”  Here the similarities to stadial theory were yet more prominent. Demsetz, relying on the work of anthropologists who had studied native tribes of the Canadian northeast, described societies that had moved from hunting to husbandry of fur-bearing animals (husbandry being either a sort of pastoralism or agriculture). Demsetz argued that this change in subsistence methods was accompanied by a change in property arrangements — lack of private property gave way, as a response to new, commercial demands for pelts, to defined property rights in land:
Herman Moll, inset from Beaver Map (1715)
We may safely surmise that the advent of the fur trade had two immediate consequences. First, the value of furs to the Indians was increased considerably. Second, and as a result, the scale of hunting activity rose sharply. Both consequences must have increased considerably the importance of the externalities associated with free hunting. The property right system began to change, and it changed specifically in the direction required to take account of the economic effects made important by the fur trade.
While not tracking Enlightenment stadial theory precisely, Demsetz’s account overlapped with it in several respects (not at all coincidentally, as we will see): echoes of the progression hunting-pastoralism-agriculture-commerce, an accompanying shift to increasingly defined property rights, and an explanatory mechanism based on increasing pressure on the resource.  Regarding this last point, Demsetz’s consideration of externalities was markedly similar to Adam Smith’s argument that “when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer.”

Demsetz’s work was extremely influential on property theorists in the legal academy, many of whom continue to make use of the stadial paradigm. James Krier, for instance, recently advanced a modified Demsetzian account of the evolution of property rights from hunter-gatherer societies with communal ownership to agricultural ones with individual ownership.  Demsetz’s model also had major impacts on the economic literature on the commons (e.g. Anderson & Hill's "The Evolution of Property Rights" and the literature it spawned),  as well as on the “common pool resources” literature associated with Elinor Ostrom.

Perhaps less obvious, but in some respects uncannily similar to Adam Smith’s theory, is Carol Rose’s influential classification of management strategies for common resources.

Friday, November 30, 2018

Running water for the officials, rainwater for the poor

Venetian aqueduct in Crete
The latest issue of Water History has an article by Yannis Spyropoulos, "Running water for the officials, rainwater for the poor: symbolic use and control of water in early modern Ottoman Crete". The abstract:
This paper deals with the issue of water management on the island of Crete from the beginning of the Ottoman–Venetian war in 1645 to the beginning of its Egyptian administration in 1830. Based primarily on information given by Kandiye’s (mod. Herakleion) Shariah court records, but also on a variety of published and unpublished archival material from Turkey, Greece, and France, it explores the socioeconomic aspects of water-resource exploitation in the island’s urban centers, analyzes the involvement of various local and imperial actors in water management, and locates the struggles created in the above-mentioned processes. Through a detailed analysis of the challenges faced by the administration and the population of an insular area with limited water resources, such as Crete, the article tries to take a fresh look at water management on the Ottoman periphery: It redirects the researchers’ focus from heavily-populated cities and large cultivated plains to the examination of smaller regions with no major hydraulic and irrigation networks and puts emphasis on the symbolic use of water in the socioeconomic context of the Ottoman Empire.
And from the conclusion:
I would like to underline the importance of running water in early modern Ottoman Crete as a symbol of financial and administrative power. In Islamic Law, water was considered to be a public good reserved for everyone, regardless of class and officialdom. Yet, in an insular space with limited water resources, such as Crete, Islamic canonical treatment of water was often overruled in favor of those with access to wealth and power. In this context, the ownership of running water became a status indicator for the island’s elites and a field of competition and negotiation between various officials. In early Ottoman Crete, it was mainly the sancakbeyis and other non-Cretan officials who undertook the task of finding and channeling running water to the island’s three cities, yet, through time, as local elites started rising to power, mainly through their connection with the military, the management of water resources gradually passed into the hands of both imperial and local actors. Their origins notwithstanding, the tactic used by all these elites was similar: They claimed the water of all the springs discovered in the vicinities of their cities by creating infrastructure connecting the former to the latter. After ensuring the appropriation of a large amount of water resources for their own establishments, they provided the rest of the water for public use –mainly through private endowments—thus presenting themselves as benefactors in the eyes of the local populace. The latter’s restricted access to running water, on the other hand, not only made them turn to rainwater in order to quench their thirst, but it also seems to have been one of the most probable causes of the frequent sabotage of the water-supply networks of Crete, a reasonable reaction if seen in the light of the following Koranic verse: “And We send the fecundating winds, then cause the rain to descend from the sky, therewith provide you with water (in abundance), though ye are not the guardians of its stores”.

Tuesday, November 27, 2018

Savagery, civilization, and property II: Civilization and its discontents

(Part II of the series, Part I is here.)

The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress:
In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there corresponded different sets of ideas and institutions relating to law, property, and government… (Ronald L. Meek, Social Science and the Ignoble Savage 6 (1976))
From the beginning, property law had a central place in this type of theory — it was, it seems, the motivating factor behind the theory  — and the discussion of property displayed striking similarities to aspects of modern commons theory (to be discussed in Part III below). John Dalrympleʼs three-stage theory, the first published version of stadial theory (1757), connected the progress of society with increasing specification of property rights. Moreover, it attributed the transition between stages to what we might today call increasing pressure on resources:
The first state of society is that of hunters and fishers; among such a people the idea of property will be confined to a few, and but a very few moveables; and subjects which are immoveable, will be esteemed to be common. In accounts given of many American tribes we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them, as makes him guilty of infringing the rights of others.
The next state of society begins, when the inconveniencies and dangers of such a life, lead men to the discovery of pasturage. During this period, as soon as a flock have brouzed [sic] upon one spot of ground, their proprietors will remove them to another; and the place they have quitted will fall to the next who pleases to take possession of it: for this reason such shepherds will have no notion of property in immoveables, nor of right of possession longer than the act of possession lasts. The words of Abraham to Lot are: “Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” And we are told that the reason of this separation, was, the quantity of flocks, and herds, and tents, which each of them had, and which the land was unable to support; and therefore lord [sic] Stairs ingeniously observes, that the parts of the earth which the patriarchs enjoyed, are termed in the scripture, no more than the possessions.
A third state of society is produced, when men become so numerous, that the flesh and milk of their cattle is insufficient for their subsistence, and when their more extended intercourse with each other, has made them strike out new arts of life, and particularly the art of agriculture. This art leading men to bestow thought and labour upon land, increases their connection with a single portion of it; this connection long continued, produces an affection; and this affection long continued, together with the other, produces the notion of property. (John Dalrymple, An Essay Towards a General History of Property in Great Britain 86–88 (1757))
Lord Kames
The jurist Henry Home, Lord Kames, also connected the stages of society to property law in his Historical Law Tracts (144–46 (Edinburgh, A. Kincaid & J. Bell, 1758), footnotes omitted and spelling modernized):
In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandered about in hordes or clans, in order to find pasture for their cattle. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a horde or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property.
Agriculture, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it.
Elsewhere Kames connected the advance between stages with the pressure of growing populations on resources: 

Friday, November 23, 2018

Farber's 1981 casebook

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981:
Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then.
Even though the statutes are the same, there have been a massive number of new regulations and court decisions. In 1981, we were able to cover both the Clean Air Act and the Clean Water Act in just over a hundred pages of fairly large print. In the latest edition with Ann Carlson, covering those statutes takes 170 pages in much smaller print. (The next edition will add one more co-author, William Boyd.) In 1980, we could excerpt just about every Supreme Court environmental case, but now there are too many. And of course, there’s CERCLA now. Despite dropping an important topic (public lands) and having smaller print, the latest edition is over 200 pages longer.
I was also interested to see that the 1981 edition had a chapter on federalism, including restrictions on state environmental regulation. We also included some material on the ability of cities to pursue environmental regulations under state law. Both have remained hot topics and the subject of frequent litigation today.
The 1981 edition was ahead of its time in one way: there was a separate chapter on energy and the environment. The amount of pride that I can take in that is dimmed, however, by the fact that we dropped that chapter very soon thereafter and redistributed the contents to other chapters. People had lost interest in energy issues at that point. 

Tuesday, November 20, 2018

Savagery, civilization, and property I: Introduction

To cap the series I've been doing on "The Tragedy of the Commons at 50" (the last post is here), I'm going to post my own contribution to the issue (SSRN, Academia), in installments. I'd be really happy to get feedback.

This series makes a simple claim: that the commons theory of the last half century, in its various forms and schools, has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” passed down to the twentieth century through the disciplines of anthropology and human ecology, and strongly entrenched in the patterns of thought of property theorists to this day.

I do not wish to argue that recent thinkers deliberately or consciously based their theories on early modern precedents, nor do I claim that their theories simply recast old theories, pouring old wine into new bottles. What I wish to argue, rather, is that modern commons theory is a series of variations on a theme, the theme being the passage of human societies from stages of “barbarism” or “savagery” to “civilization.” This way of thinking, largely elaborated in the eighteenth century, has proved to be so powerful that it continues to shape the discourse around common property and environmental commons into the twenty-first. As Nathaniel Wolloch has argued with respect to similarities between stadial theory and Norbert Elias’s civilizing-process theory, “the similarities between these two perspectives are much clearer than their differences, and point to a continuing tradition in modern historiographical interpretations of the rise of civilization.” For Elias’s theory substitute property theory, and for historiographical interpretations of the rise of civilization substitute theoretical interpretations of the rise of private property, and you have my argument.

The significance of this claim lies not only in its implication that modern commons theory has been somewhat confined by the straits of a discourse of which it is not even always aware. It lies also in that its portrayals of transitions between property regimes largely partake either of Enlightenment assumptions of civilizational progress or of a Romantic reaction to this attitude, with its valorization of the primitive. Thus do deep cultural attitudes, rooted in the speculative thinking of an earlier age, color todayʼs theories — positive and normative — of the commons.

A commons
To set the stage, consider the concrete examples or allegories used by commons theorists of the last half century, to be discussed in the next post. Nearly without exception, they have skipped over such familiar but prosaic commons as cooperatives, condominiums, corporations, and neighborhood associations, in favor of studies of the exotic worlds of hunters, herdsmen, and smallholding farmers. The reason, I suggest, is the continuing influence of early modern theories of civilization.

After describing (in post II of this series) these earlier ways of thinking I will note (in post III) the striking similarities of recent theories of the commons to the earlier models, and then (in post IV) try to trace the channels of influence. I will conclude with why I think this matters.

Friday, November 16, 2018

Why are California's fires worse than those in Baja California?

California's Camp Fire, November 2018
Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?". The abstract:
Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages of the more managed, sustainable Hispanic approach.

Tuesday, November 13, 2018

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:
This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.
Thomas Malthus

Thursday, November 8, 2018

Survey: Top environmental law cases

I'm reposting (with permission) an email I recently got from Jim Salzman (the picture is my own addition):
We are writing to invite you to participate in a survey we trust you will find interesting and fun. In 1999 and 2009, JB Ruhl (Vanderbilt Law School) and I surveyed environmental law practitioners and academics about which Supreme Court cases they thought were the most important to our field. The 1999 results were published in ABA’s Natural Resources & Environment, and the 2009 results were published in ELI’s The Environmental Forum. A decade later, we have prepared the 2019 survey and are eager to see how the data have changed. We intend to publish the results this Winter.
Please click here for the link to the survey. We are posting this information on multiple environmental law list serves and apologize for cross-listings. Please take the survey only once.
We hope you will take the two minutes needed to complete the survey to help give us as much data as possible.  Thanks for your assistance with this! 

Friday, November 2, 2018

Water law in imperial Russia

The current issue of Water History has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917". First, an extract (footnotes and references omitted):
Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply.
Czar Alexander II
The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “contaminating water in places where it was taken for internal consumption by throwing into it harmful substances or in any other way” (ruled in 1871) and obliged local police and municipalities to ensure that “rivers and springs in towns and villages were not polluted.” The Building Statute and the Statute of Industry prohibited the construction of “mills and factories harmful for the purity of air and water upstream of towns.” This norm was inherited from the early nineteenth century and its interpretation and application proved difficult in the later contexts of urban and industrial growth. In 1904, the Senate had to clarify that it applied only to particularly dangerous or poisonous industries, while all other factories could be allowed on condition of proper waste decontamination. 

Tuesday, October 30, 2018

Commons and cognition

Next up in the series of posts on "The Tragedy of the Commons at 50" (the last post is here) is the article of my co-editor for the volume, Carol Rose, "Commons and Cognition". The abstract:
Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in the Prisoner’s Dilemma (a very small commons) would appear to be dominated by distrust rather than the hypothetical herder’s ignorance or indifference. Participants in midsized commons — such as Hardin’s herders in real life — show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues are actually those most likely to exhibit the ignorance and indifference that Hardin attributed to the herder. This Article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” as described by major theorists and concludes with some observations about the cognitive aspects of climate change.
Robert Axelrod, author of The Evolution of Cooperation (1984)

Friday, October 26, 2018

The US Wild & Scenic Rivers Act turns 50

Richard Frank recently posted at Legal Planet on the 50th anniversary of the enactment of the US Wild and Scenic Rivers Act. Some excerpts:
1968 was an especially tumultuous year in modern American history.  The nation endured the assassinations of both Martin Luther King, Jr. and Robert F. Kennedy; then-President Lyndon Johnson announced he would not seek reelection due to growing public dissatisfaction with the government’s conduct of the Vietnam War; and protests and riots consumed Chicago, Detroit, Washington, D.C. and many other American cities.
So it was in stark contrast and a most welcome development when in 1968 Congress passed, and (in October of that year) a lame duck President Johnson signed into law the Wild and Scenic Rivers Act....  The Act represented a major political and conservation achievement 50 years ago.  It remains an important cornerstone of America’s conservation efforts a half century later.
Under the WSRA, rivers are classified as wild, scenic or recreational.  Wild River Areas are those that are free of dams and generally inaccessible except by trails, with watersheds or shorelines essentially primitive and waters unpolluted.  Scenic River Areas are those free of dams and with shorelines and watersheds still largely primitive and undeveloped, but accessible by roads.  Recreational River Areas are readily accessible by road or rail, that may have some development along their shoreline, and that may have undergone past dams and diversions.  Regardless of their classification, each river in the National Wild and Scenic Rivers System is administered with the goal of protecting and enhancing the values that caused it to be designated in the first place.
The WSRA, authored by Senator Frank Church (D-Idaho), was a legislative response to the fact that in 1968, many if not most of America’s rivers were already dammed for hydroelectric and flood control projects.  (By comparison to rivers designated under the WSRA, more than 75,000 large dams in the U.S. have modified over 600,000 miles of American rivers.) 

Tuesday, October 23, 2018

Indigenous peoples, political economists and the tragedy of the commons

Next in our series on "The Tragedy of the Commons at 50" (the last post is here) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons". The abstract:
In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbounded wilderness placed at the disposal of frontiersmen. Though he eventually acknowledged the existence of managed commons, he had little interest in community rules pertaining to resource exploitation. For him, these were simply moral norms which inevitably became ineffective after a community reached a certain level of population. He also took economists to task for failing to include in their analysis the true environmental and social costs of public decisions. Still, the famous example of the indigenous people of Northeastern Quebec illustrates a shortcoming of his analysis: community members did not act in total isolation from each other. On the contrary, communal norms could prevent an overexploitation of resources or allow for the adoption of corrective measures.
Beaver Hunting in Canada,
from Charles Theodore Middleton’s A New and Complete System of Geography…, after Chiedel, 1777-1778
(Library and Archives Canada)

Wednesday, October 17, 2018

Law and environmental-technological change

Construction crane at Norris Dam (TVA) (Currents of Change)
Yesterday's New York Times had a piece by Naomi Oreskes and Erik Conway on the need for government help in making the technological transformations necessary to avert disastrous climate change - in particular, phasing out fossil fuels by the year 2050. They write:
None of the major technological transformations of the 19th and 20th centuries were the product of the private sector acting alone and responding only to the market. Railroads, radio, telegraph, telephone, electricity and the internet were all the result of public-private partnerships. None was delivered by the “invisible hand” of the marketplace. All involved significant interventions by the visible hand of government.
What does this mean for us? Right now, government is widely seen as inefficient and ineffective, and our needs are thought to be best addressed by the private sector, through entrepreneurship, venture capital and Silicon Valley-style “disruption.” But unless we acknowledge the need for a substantial government role, we are going to be stuck, because change driven solely by the marketplace is unlikely to suffice.
Some might object that our current challenge is vastly different from those met by past technological changes, because we’re not just talking about a thing, like a radio or cellphone, but about changing our entire energy system. But these earlier transformations involved systems, too. Just as energy technology isn’t one thing, neither were the railroads, radio, electricity or the internet. Those systems all involved many parts, including federal, state and local policies to support them (the land grants that made the railroads possible, for instance, or role of the Federal Trade Commission in licensing radio and television stations). 

Friday, October 5, 2018

The roots of Ostrom's commons work

Continuing the series on "The Tragedy of the Commons at 50" (the last post is here), Fabien Locher's "Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)" provides interesting historical context for the work of Ostrom and the huge body of commons studies she inspired. The abstract:
The goal of this article is to write a social and political history of the now preeminent approach to the ‘commons’ institutions, by focusing on Elinor Ostrom’s contributions to its development. My methodology is that of Science and Technology Studies (STS). I focus here on the materiality of E. Ostrom and her team’s research practices (fieldwork, data collecting, indexing and analysis), on their intellectual and institutional strategies, their networking practices, how their research was funded, and their interactions with administrative and academic institutions and actors (USAID, NSF, National Academy of Sciences). I analyze the history of the Workshop in Political Theory and Policy Analysis, the research center that E. Ostrom and her husband Vincent founded and animated for some 40 years at Indiana University, Bloomington. By doing so, I hope to be able to analyze the close ties between the form and content of the Ostromian theories on the commons and the main lines of tension in the U.S. society of the 1970s and 80s that saw their emergence: urban crisis and “neighborhood revolution”, increasing distrust of modernization and centralization ideals, mutations in U.S. development policies and doctrines, rise of neoliberalism.

Wednesday, October 3, 2018

Cronon and commodification

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential Nature's Metropolis (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts:
[Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries.
This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica. The most important distinction, perhaps, was between the human and the nonhuman: proletarianization is, after all, a human process.
Commodification, on the other hand, tends to overwhelm distinctions, starting with the human-nonhuman: while only humans can be proletarianized, everything can be “priced”—placed in a relationship with other things that can be expressed in terms of a number. Even more, while the process of proletarianization seems never to engulf the whole of a person (see my argument in this post), commodification assimilates both individual humans and their internal qualities to a system of commensurable valuations: your cheerfulness as well as your blood pressure, your knowledge of Latin as well as your attention can all be denominated in dollars, no different from a television or a ticket to a concert.
In this way, the story of commodification flattens distinctions between humans and the (rest of the) natural world, demolishing proletarianization’s marked anthropocentrism. Putting a price on human lives or health or knowledge or creativity and putting a price on a chair or a car is one single continuous process; as much as labor could be abstracted as just one more input or one more production cost, the story of making humans into proletarians was always distinct from—if parallel to—the story of extracting value from the natural world.
There are various ways to account for this shift in historical narration away from proletarianization’s anthropocentrism. Certainly, the influence of environmentalism has something to do with it. While very much leftist critique descending from Marx is (still) only fitfully cognizant of ecological critiques of capitalism, some of the ontological premises of an ecological worldview have seeped into culture so generally that an older stark separation of the human and the nonhuman is no longer tenable.
Another possible explanation comes from the small explosion since the 1990s of works in the subfield of what Lorraine Daston has dubbed “historical epistemology,” which as Sklansky defines it is the study of “the invention of new kinds of fact such as employment figures and credit ratings along with the modern metrics and matrices that produced them” (Sklansky, “Elusive Sovereign,” 242). Offspring of the history of science, studies in this vein emphasize the ways that quantification and abstraction have profoundly reshaped the image of “the human,” creating what Dan Bouk has called the “statistical individual.” Incarnated in numbers, this creature can float freely as part of a universe of endlessly adaptable equations: where the human worker needs to occupy a certain place in the production process, the statistical individual can be plugged in far more flexibly at many points in a firm’s calculations and predictions.
The other week on Twitter, Eli Cook pointed out one possible source of inspiration for a generation of historians, one reason why folks who entered graduate school from at least the mid-90s through the present might have had commodities on their minds. That source is a single chapter in a single monograph: the grain chapter of William Cronon’s Nature’s Metropolis (1991), Chapter 3. 

Sunday, September 30, 2018

Regulation and representation in Commissions of Sewers

The English Commissions of Sewers remain a fertile source of scholarship (for earlier posts see, e.g., here and here.) Last year Environment and History published John Emrys Morgan's "The Micro-Politics of Water Management in Early Modern England: Regulation and Representation in Commissions of Sewers". The abstract:
Early modern water management was as much a social and political endeavour as an environmental one. This paper explores this assertion by analysing the different forms of knowledge used by English Commissions of Sewers in the governance of flood defence and drainage in the sixteenth and seventeenth centuries. Using examples drawn primarily from Gloucestershire and Lincolnshire, in south-west and eastern England respectively, this paper traces the rise and decline of popular influence over water management. Where Commissions of Sewers operated harmoniously, they were staffed by significant numbers of local people, who valued their right to participate in water management. With the involvement of large numbers of 'ordinary' people, Commissions of Sewers, and particularly the minutes of Courts of Sewers, became repositories of oral and customary knowledge about the functioning of local drainage networks and flood defence schemes. However, the paper argues that, over time, as customary knowledge that was divulged and negotiated orally became codified, and decisions about water management became founded on textual precedent, those who lacked access to textual resources lost influence over water management decision making.

Friday, September 28, 2018

The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:
Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

Sunday, September 23, 2018

Regional planning in a decentralized state

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland". The abstract:
This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs; the proportional division of the costs; and the use of compensation for damage suffered. These practices respected local autonomy and broadened the level of support among the local stakeholders. The effectiveness of the practices was strengthened when they were used in combination with a technique provided by the Habsburg state: the enqueste or inquiry. This was a technique for gathering reliable, relevant and detailed information at the local and regional level. In this case study, the information on landscape and water use, collected by the 1544 Commission of Inquiry, facilitated cooperation between communities that enjoyed a high degree of self-governance.

Friday, September 21, 2018

Cold-War commons

Next in the series of posts on "The Tragedy at 50" (the last one is here), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space". The abstract:
Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedies, central to a post-Cold War project of advancing “market democracy.” Meanwhile, the notion of an “illiberal commons” stands ready for redeployment in future situations conceived as tragically problematic.

Wednesday, September 19, 2018

Historical analysis in environmental law

I'm pleased to announce that The Oxford Handbook of Legal History, edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here. The book is available both in print and online. I'd be happy for any comments on my paper!

Friday, September 14, 2018

Free the beach

The Boston Review recently published Andrew Kahrl's "Free the Beach", an essay adapted from his Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism:
For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois, which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity.
Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at high tide, others at low tide, still others at the vegetation line—and devised different definitions of what constituted legitimate use of the public’s shore. Some states conceived of the public’s right to the shore in broad terms. Other states hewed closely to the public trust doctrine’s original intent. Massachusetts and Maine, for instance, held that the public’s right to the foreshore applied only to fishing and navigation; that private ownership extended down to the low-water line; and that the recreational use of private property was tantamount to an unconstitutional taking of private property. Connecticut drew the line between public and private property at the mean high-water mark, and its courts recognized swimming and recreation as legitimate uses of public trust lands.
While Connecticut’s supreme court upheld the public status of the foreshore, the actions of shoreline developers, backed by the state legislature, made it increasingly difficult for members of the public to enjoy their beach access rights. Beginning in the 1880s, wealthy families began building summer cottages along remote sections of shore in the state’s eastern half. In 1885 the state legislature granted a charter to a group of families who owned cottages in Old Saybrook. The charter gave the Fenwick Association the power to levy its own taxes and enact zoning restrictions. During the late nineteenth and early twentieth centuries, other small groups of families successfully petitioned the state legislature for charters to form what came to be known as private beach associations. Many of these early beach associations formed as an expeditious way of meeting the basic needs of summer homeowners in remote, undeveloped areas lacking in basic infrastructure and services. 

Tuesday, September 11, 2018

The water commons beyond property and sovereignty

Irrigation canal in Provence
Continuing the series of posts on "The Tragedy at 50" (the first one is here), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty":
Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public. 

Thursday, September 6, 2018

Moving watersheds, borderless maps, and imperial geography

The Historical Journal recently published Kyle Gardner's "Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya". The abstract:
This article uses the British colonial history of border making in northern India to examine the assumptions and contradictions at work in the theorizing, configuring, and mapping of frontiers and borders. It focuses, in particular, on the development of the ‘water-parting principle’ – wherein the edge of a watershed is considered to be the border – and how this principle was used to determine boundaries in the northwestern Himalaya, a region that had long-established notions of border points, but no borderlines. By the twentieth century, the water-parting principle would become the dominant boundary logic for demarcating borders in mountainous regions, and would be employed by statesmen, treaty editors, and boundary commissioners around the world. But for the northwestern Himalaya, a region that British colonial officials considered to be the ‘finest natural combination of boundary and barrier that exists in the world’, making a border proved much more difficult than anticipated.

Tuesday, September 4, 2018

The banality of the Tragedy?

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law on "The Tragedy at 50", which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse.

First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin". The abstract:
The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why  The Tragedy of the Commons nevertheless quickly attained its canonical status.
On the other hand, Nathaniel Wolloch has a different view, as evidenced in his "Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources":
John Stuart Mill
This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of the early modern mercantilists, and also of classical political economists such as Adam Smith and even, surprisingly, Malthus, as well as of Jevons and his neoclassical discussion aimed at maximizing the long-term use of Britain’s coal reserves. One intellectual who did recognize the problematic possibility of leaving some tracts of land in their pristine condition to answer humanity’s need for a spiritual connection with nature was J. S. Mill, but even he regarded this as in essence almost a utopian ideal. The notion of the tragedy of the commons in its broader sense is therefore a distinctly modern one.
Banner and Wolloch come from different disciplinary backgrounds, which may affect their understanding of what exactly the "tragedy of the commons" is supposed to mean. (I, for one, am with Banner on this.)

Sunday, September 2, 2018

The Powell memo

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website:
Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise.
It's a pretty amazing document. Here's an excerpt:
As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lobbyist" for the business point of view before Congressional Committees. The same situation obtains in the legislative halls of most states and major cities. One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the "forgotten man".
Current examples of the impotency of business, and of the near contempt with which businessmen's views are held, are the stampedes by politicians to support almost any legislation related to "consumerism" or to the "environment".
For more on the memo, see here.

Friday, August 31, 2018

Goodbye Abbey, hello intersectional environmentalism

Sarah Krakoff recently posted a critical take on Edward Abbey on Environmental Law Prof Blog. Some highlights:
Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort, we need his irascible, cranky, and irrepressible voice today more than ever.  
But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienating version of what it means to be “truly wild,” or “truly radical,” or “truly environmentalist.” The problem with re-lionizing Abbey in 2018 is not just that he was sexist, racist, and xenophobic. But also that those views were sewn into his brand of so-called radicalism. They constituted the lenses through which he saw the landscape he aimed to protect.
What Abbey saw were beautiful empty places where white men (quite specifically) could be free and wild. Their version of wilderness preservation, even supplemented by the occasional nod to the evils of growth-dependent and extraction-based economies, was oblivious to the structures that enabled their seemingly unmediated encounters with the desert. Those structures included brutal and unscrupulous campaigns to dispossess Native people of most of southeast Utah. They included the failure of post-Civil War efforts to democratize homesteading by including eligible African Americans eager to flee the South. And they included, time and again, the cultural acceptability of exploiting women, both by treating them as fungible sex toys and by relying on them to mind the homestead and raise the young’uns. Abbey’s version of radical environmentalism assumes away all of the inequalities baked into his ability to be a free man in canyon country. Abbey also managed to alienate lots of white men while he was at it. He scorned ordinary work as part of his critique of corporate and industrial interests and romanticized manual labor even while he railed against ranchers and farmers in his midst.

Wednesday, August 1, 2018

Public trust and public access

A while back we noted an H-Environment roundtable on Andrew Kahrl's The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South. Now Kahrl has turned his attention to the North in Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018), and Law & History Review has a review by Deborah Dinner. Dinner writes:
On July 4, 1974, a daring, no-holds-barred activist named Ned Coll launched an amphibian assault on an exclusive Beach Club in Madison, Connecticut. Coll’s comrades included more than fifty children from nearby Hartford’s poor, majority African-American housing projects. The children, their mothers, and staff members of Revitalization Corps, an advocacy organization dedicated to racial equality and justice for the poor, were clothed in bathing suits and armed only with laughter, songs, and excitement. Yet the affluent white parents on the beach saw the newcomers’ entry as an ambush and quickly retreated, children in tow, to their private club. The episode constituted one highlight of Coll’s campaign to win public access to the beaches along the shoreline of a state plagued by extreme wealth inequality.
A somewhat obscure common law doctrine—newly and hotly contested in the 1970s—rested at the heart of Coll’s creative protest of the Madison Beach Club. The public trust doctrine...

Sunday, July 29, 2018

The California ascendancy: Explaining world leadership in environmental law and policy

[A guest book review from Geoffrey Wandesforde-Smith:]

In the newest addition to the Studies in American Politics series from Princeton University Press, David Vogel in California Greenin’: How the Golden State Became an Environmental Leader (Princeton UP, 2018) asks how it is that California has had such success in protecting its environment and has become a world leader in making and implementing environmental policy and law.

Vogel sketches boldly on a large canvas:
This book describes what is in many respects a remarkable success story. It demonstrates how a state government has been able to overcome substantial obstacles and enact a wide range of regulations that have made measurable - though admittedly uneven – progress in protecting its environment and improving the quality of life of its residents. Although California has often seemed on the verge of ecological (as well as economic) catastrophe, it has proven remarkably resilient. The state’s ability to remain the most important source of environmental policy innovation in the United States over so many decades and across such a diverse range of policy areas is a significant accomplishment.  It is worth understanding why and how this particular state came to play such an important leadership role in this area, as well as the broader policy implications of such leadership [p. 6]. 
One of those implications, Vogel writes, is that the story of California’s ascendancy holds lessons for the world:
What happens in California…has a global impact.  During the 1980s, the relative stringency of California’s vehicle emissions standards was an important reason why Germany chose to support the adoption of similar standards by the European Economic Community… More recently, according to…a Nobel Prize-winning scientist from Mexico, “the rest of the global economy is looking to California, as one of the world’s largest economies, to take the lead” in addressing the risks of global climate change.  The state has come to play an increasingly active international role [p. 8, citations omitted].
When it comes to explaining how and why California has become such a successful and resilient law and policy leader Vogel focuses on three factors he considers to be interconnected in varying ways at different times in the state’s history, depending on the issues being addressed.  

One is the political mobilization of California’s citizens, most especially in the late 1960s and 1970s.  A second is the support for environmental policy initiatives provided at critical moments by least some important segments of an often divided business community.  And a third is the growth over time of the state’s capacity to design and implement programs of resource management and environmental regulation, in some cases in state agencies recognized as world leaders in the work they do [1].

This is obviously a provocative thesis and it may well keep students of the history of California environmental law and policy busy for some time to come.  But it also and immediately raises the question of why, if the story of California’s ascendancy, which on Vogel’s telling has its roots in the late nineteenth century, is so remarkable and potentially so influential, the story hasn’t been told before now.  

The answer is that the story has been told, at least in part, twice before, although Vogel chooses not to engage seriously with either prior account [2].