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]. 

Water rights in the Mexican Supreme Court

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946":

This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the postrevolutionary period, the Supreme Court usually decided cases according to traditional property and evidence concepts regardless of political trends.

The full book chapter is in Spanish, but Reich is at work on a revised English version. We'll keep you updated.

Now published - The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Last June we held a conference at TAU Law to explore the history of commons thought: The Tragedy of the Commons at 50: Context, Precedents, and Afterlife. I'm happy to report that the papers have now been published in the latest issue of Theoretical Inquiries in Law, edited by Carol Rose and myself, available here. I'll post more on the individual articles later; in the meantime here's the table of contents (the issue also has a couple of additional unrelated articles not listed below):

The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin
Stuart Banner

Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources
Nathaniel Wolloch

Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty Alice Ingold

Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space
Monica Eppinger

The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”
Harry N. Scheiber

Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory
David B. Schorr

Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)
Fabien Locher

Indigenous Peoples, Political Economists and the Tragedy of the Commons
Michel Morin

Commons and Cognition
Carol M. Rose

Confronting Hardin: Trends and Approaches to the Commons in Historiography
Giacomo Bonan

Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy
Oren Bracha

Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives
Amnon Lehavi

Garrett Hardin

Protection for polluters

“Roast Yard no. 2” in Copper Cliff (c. 1903),
providing a good idea of the damage the heap roasting inflicted on the local environment
(City of Greater Sudbury Heritage Images, Copper Cliff Museum Collection, CC0115)

Mark Kuhlberg and Scott Miller recently published "'Protection to the Sulphur-Smoke Tort-feasors': The Tragedy of Pollution in Sudbury, Ontario, the World’s Nickel Capital, 1884–1927" in the Canadian Historical Review. First, the abstract:

While there are many tales of mining companies polluting the Canadian communities in which they have operated, Sudbury’s early history stands out. It is arguably the most extreme example of an industry dictating to government how the latter dealt with the local pollution problem–in this case, sulphur dioxide emissions. The capstone achievement was the creation of an extrajudicial solution to the problem that permanently suspended the legal rights of residents seeking redress for their grievances. Moreover, the Ontario government was duplicitous in this affair–namely, by zealously luring settlers to the region in an effort to develop farming there even though it was acutely aware of the local pollution problem. Finally, this story is truly tragic because the pollution need never have happened to the extent that it did. The provincial politicians knew full well that the means existed–within a short jaunt of Sudbury no less–to mitigate the problem, but the politicians refused to force the mining firms to adopt them. Retelling Sudbury’s story thus highlights how the Ontario government’s decision to grant the mining firms practical impunity to pollute the local environment–both human and non-human–was a matter of political choice.

The article details the many legal tactics taken by the mining companies to avoid an injunction that might shut down their operations, the most extreme of which was the "extrajudicial solution" mentioned above. Said solution was one which has also reared its head in recent times - compulsory arbitration. The article explains the Ontario Act to Provide Compensation for Damage caused by Sulphur Fumes of 1921 (citations omitted):