Sunday, October 20, 2019

In memoriam: Meir Shamgar

Meir Shamgar as a detainee in Eritrea, 1946
Friday saw the passing of one of the greats of Israeli law, former Justice and President of the Supreme Court Meir Shamgar. Shamgar has been eulogized elsewhere, mainly with regard to his many important contributions to constitutional law and public law in general, but I'd like to shine a light on an important decision of his in an environmental nuisance case, about which I've written (in Hebrew). (I hope the case will be translated into English soon.)

Ata v Schwartz (1976) is an Israeli classic. Briefly put, Schwartz sued a neighboring textile factory, the largest in Israel at the time; asking for an injunction against the noise emitted by its cooling and ventilation systems. Despite the factory's warning that granting the injunction would lead to the layoff of thousands of workers, the trial court as well as the two appeals courts that considered the case upheld Schwartz's right to an injunction, noting that the relevant statute rejected a "balance of the equities" test for permanent injunctions, and emphasizing the importance of every person's right to live free of harsh disturbances.

What makes the case a chestnut for teaching, beyond the stark facts and bold result, is Justice Shamgar's discussion in his decision for the Supreme Court of the then-new economic approach to law. Unbidden by the parties, Shamgar linked the defendants' claim that an injunction should be granted only if the balance of the equities was in the plaintiff's favor (i.e. that the harm eliminated by the injunction would be greater than the cost of complying with it) to classic arguments by Ronald Coase, Richard Posner, and Guido Calabresi (with Douglas Melamed), arguing for wealth- or utility-maximization as the guiding principle of nuisance law. I write "classic arguments", but Shamgar's decision was really the first (in the world) to discuss the works of these authors at any length. Why "the law and economics movement" received its first substantial treatment in an Israeli, and not an American, court is a subject for another time.

Thursday, October 17, 2019

NEPA and executive power

During these days of executive/legislative tension in the US, the Journal of Policy History recently published John Hart's "The National Environmental Policy Act and the Battle for Control of Environmental Policy". The abstract:
In 1969, a public debate between President Nixon and Congress took place during the legislative passage of the National Environmental Policy Act and centered on two very different and competing conceptions of how presidential advice should be organized in the Executive Office of the President. It focused on the proposed establishment of the Council on Environmental Quality. The outcome of the ensuing battle represented a complete victory for congressional interests against the expressed wishes of the president. The nature of the debate has been overlooked in the literature on the presidency, but it highlights fundamental issues about agency design and presidential control of the institutional presidency. It also highlights broader concerns about the degree of congressional involvement in shaping the Executive Office of the President.
"New council on environment," Michigan Daily, January 30, 1970

Tuesday, October 8, 2019

Yom Kippur, Maimonides and greenhouse gas regulation

Tonight and tomorrow are the Jewish High Holiday of Yom Kippur, the Day of Atonement. In a recent debate about Israeli climate change policy my colleague at TAU, Pinchas Alpert, invoked a seasonal analogy based on a passage from Maimonides, the great medieval Jewish jurist and philosopher.

An article by Nadav Feldman in The Marker Magazine (in Hebrew) quotes an Israeli religious neoliberal blogger (yes, that American combination has recently reached Israel, thanks to American funding) as arguing that Israel should not take any regulatory action against greenhouse gas emissions. His lead argument is that Israel's contribution to global emissions is but a small proportion of global emissions, so any action taken by Israel will impose local costs without bringing about any benefit.

In response, Alpert, a climate scientist, points to a passage from Maimonides's Laws of Repentance, which many Jews study this time of year. Maimonides writes (3:4, transl. Eliyahu Touger):
Maimonides
A person should always look at himself as equally balanced between merit and sin and the world as equally balanced between merit and sin. If he performs one sin, he tips his balance and that of the entire world to the side of guilt and brings destruction upon himself.
[On the other hand,] if he performs one mitzvah, he tips his balance and that of the entire world to the side of merit and brings deliverance and salvation to himself and others. This is implied by [Proverbs 10:25] "A righteous man is the foundation of the world," i.e., he who acted righteously, tipped the balance of the entire world to merit and saved it.
So, too, for environmental issues such as climate change, argues Alpert, every person's contribution to the problem or its solution is decisive, and we each need to see ourselves as responsible for our current predicament.

May we all be sealed in the book of life.

Friday, October 4, 2019

A plea for more historical awareness in environmental law

The latest issue of Rechtsgeschichte has a generous review by Jan-Henrik Meyer of my chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Meyer writes:
Schorr ascribes the lack of historical awareness to the apparent novelty of the subject area. Environmental law as a field only emerged in the wake of what already some of the contemporaries self-confidently described as the »environmental revolution« of the early 1970s. In a short span of time, roughly between 1969 and 1973, promoted by international organisations such as the OECD, NATO, the United Nations (UN) and pace-setting governments – notably the United States and Sweden – the environment emerged as a new area of policy and legislation. New institutions such as environmental agencies and ministries were established. Ambitious environmental action programmes were drafted, outlining legislative and administrative measures. The nascent environmental movement first gathered internationally around the UN Conference in Stockholm in 1972. Environmentalists critically observed and pushed these new institutions to make and shape the new environmental law. Consequently, environmental law quickly became a new subfield within government administrations, legal practice, the courts and legal scholarship.
The apparent novelty of environmental law tends to induce environmental lawyers to discount the importance of history, Schorr rightly argues. Not only do environmental lawyers frequently ignore the longer-term historical legacy, they also tend to forget that conflicts about and regulations concerning the use and abuse of nature and natural resources are not something altogether new. Schorr deplores that practitioners in particular tend to refrain from using history and historical precedent as an »argument«. This is both counterproductive and counterintuitive in the field of law, where arguing with precedent is standard practice, as many non-lawyers were reminded recently when the House of Commons’ speaker John Bercow’s mobilised 17th-century precedents of parliamentary procedures to fend off a third Brexit vote.
David Schorr is aptly placed to raise such a critique, as he is one of the few specialists of both legal history and environmental law. Schorr’s point of departure is thus a plea for a greater historical awareness in environmental law and among environmental lawyers. He convincingly argues that a longue durée view of environmental law avant la lettre would be extremely insightful. Scholars and practitioners should consider the large body of rules and regulations on nature, property, nuisances, pollution and resources produced long before such norms were actually defined as and subsumed under the new umbrella of »environmental law« in the early 1970s.
Schorr convincingly demonstrates the extent to which legal historical scholarship remains isolated from the burgeoning interdisciplinary field of environmental humanities. He is right in diagnosing a lack of dialogue with environmental history, a growing field in which legal and political aspects of human interaction have always featured prominently. For decades now, environmental historians have analysed legal texts as sources for understanding human use of natural resources, for instance, through forest codes, water laws or human attempts to protect public health through rules for urban sanitation. Such proto-environmental law often dates back to the Middle Ages or the early modern period.
Even environmental history research focusing on more recent decades involves the law: Environmental movements often pressed for legislation or used the courts, for instance, to stop the construction of nuclear power plants. Indeed, the existing legal scholarship on such issues is largely from the 1980s, when activist lawyers or administrative lawyers specialising on such issues followed up on current developments. Thus Schorr’s plea for more mutual awareness and interdisciplinary collaboration between environmental history and legal history – putting together the skills and expertise of both disciplines – is very timely. Such long-overdue cooperation is something also the author of this review is committed to.
*****
There is a sense of both scholarly and political purpose to Schorr’s final plea for a renewed emphasis on legal historical research and to using historical knowledge thus generated as an argument in legal and (thus) political debates. Three issues, he argues, are at stake: First, deepening historical knowledge is necessary and useful to better understand current environmental law. At first sight, his argument about making history relevant seems very convincing. Many political claims, such as the supposed superiority of private (vs. state) regulation, could be put to a test, with the historical record acting as a referee. However, such a view treats history as an ancillary force whose main purpose is to provide empirical evidence to back certain arguments in theoretical and political discussions. Many self-respecting environmental and legal historians would frown upon ascribing history such a role. They would also highlight methodological issues – such as anachronistically applying a clear binary distinction of public vs. private rule-making to pre-modern times, or point to contextual factors that make a comparison across time highly problematic.

Wednesday, October 2, 2019

Was the Lochner Court pro-environmental?

Justices of the US Supreme Court, c. 1925
In a recent post at Legal Planet, Dan Farber writes about "pro-environmental" decisions of the US Supreme Court in the Lochner era (roughly 1900-1935), on a wide range of topics: nuisance, takings, wildlife conservation, and public lands. Farber writes that "it is somewhat startling to see just how often the famously conservative Court of that time took the side of environmental protection."

Farber's post raises a host of questions:
Are these cases representative?
"Lochner revisionism" has been in full swing for a while now - does a pro-environment stance support either the traditional or the revisionist view of the era?
Are the legal doctrines invoked in the environmental cases at odds with those behind the court's decisions in areas such as labor law?
Could analyses of the court's opinions based on class, economics, or cultural factors explain the supposed discrepancies? And so on.

Farber adds a postscript:
After this was posted, I learned that Professor Kimberly Smith at Carleton College has actually written a book on the subject, which will appear in October from Kansas University Press.  As she told me, The Conservation Constitution traces how, between 1870 and 1930, the conservation movement reshaped constitutional doctrine to support expanded state and federal authority to protect natural resources. In striking contrast to the usual “Lochner Era” story, she finds that the federal courts during this period were largely supportive of conservation policy. She argues that this favorable attitude owes a great deal to the scientific reputation of the USDA and the talented group of lawyers supporting conservation policy.  I’m eagerly looking forward to reading the book.
So am I.

Sunday, September 8, 2019

Molecular bureaucracy

The latest issue of Environmental History has an article by Evan Hepler-Smith, "Molecular Bureaucracy: Toxicological Information and Environmental Protection". The abstract:
Legal and political claims about environmental chemicals typically address such substances on a molecule-by-molecule basis. This article argues that this approach is not determined solely by the nature of chemicals. Rather, it is the product of legal structures, administrative procedures, regulatory lists, information systems, and nomenclature conventions, which I collectively term “molecular bureaucracy.” This article traces the development of molecular bureaucracy, a global framework of environmental governance grounded in American regulatory infrastructure, and its political and environmental consequences. It does so by following the history of per- and polyfluoroalkyl substances, synthetic chemicals in widespread use since the 1950s whose toxicity has become a prominent subject of research and public concern since the late 1990s. Molecular bureaucracy originated in a classification system based on molecular identity developed to make chemical information accessible to the late nineteenth-century synthetic chemicals industry. It came to structure environmental law and politics through, first, the efforts of 1960s US policy-makers to render toxic hazards subject to government control through computer-based information coordination and, second, a vision of chemical holism within the nascent US Environmental Protection Agency and the Toxic Substances Control Act, which sought to accommodate the global environment to rational administration by aggregating diverse toxic hazards and reframing them as abstract chemical substances. The history of molecular bureaucracy offers valuable insights for present-day efforts to ground toxic substances scholarship and politics in alternative conceptions of environmental chemicals.
(Chemická informatika)

Friday, August 2, 2019

The Adirondacks in the seventies

Just out in the Journal of Policy History: Peter Siskind's "'Enlightened System' or 'Regulatory Nightmare'?: New York's Adirondack Mountains and the Conflicted Politics of Environmental Land-Use Reform During the 1970s". The abstract:
This exploration of the politics of land-use reform in New York's vast Adirondack Mountains provides a revealing window onto the ambiguities, evolution, and importance of environmental liberalism during the 1970s. A distinctive set of circumstances, featuring forceful advocacy by Governor Nelson Rockefeller and propitious political timing, led to the creation in the early 1970s of one of the most ambitious state-level environmental reforms in modern American history. But implementation during the mid- and late 1970s proved challenging. Environmental management by a new regional agency that possessed powerful regulatory authority over all public and private lands in the region produced discontents, distrust, and organized opposition among both developers and property-rights advocates on the right and environmental advocates on the left. The result was an uneasy, enduring legacy: the new regulatory institution and key environmental planning ideas of the early 1970s and the later, wide-ranging discontents would coexist in similar forms for decades to come.

Saturday, July 27, 2019

Water and Waterways Management in the Roman Empire Workshop

In unusually good timing, following on last week's post on Roman water law, the Edinburgh Legal History Blog posted the other day on a workshop recently held at Edinburgh's Centre for Legal History on the management of water resources and waterways during the Roman period. The blog reports:
The papers were grouped into three themes: (i) the management of waterways; (ii) the management of land adjacent to waterways; and (iii) the exploitation of water resources.
The central aim of the workshop was to explore the potential and challenges of studying a historical problem from the perspective of different sets of evidence. From this point of view, the conference was a success. The management of water resources was an ideal subject, partly because the effective exploitation of water was essential to both agricultural and urban development in the ancient world. Moreover, the contributions of archaeologists and lawyers combined to lend an insight into the integrated technical and legal strategies that the Romans employed to the challenge of supplying water to the places it was required. In the case of rural communities, for example, irrigation was a central concern; while cities frequently relied upon rainwater collection and aqueducts to provide for their populations. Maintaining the navigability of waterways (both natural and man-made) was also an important task. In all these cases, the construction and maintenance of the necessary infrastructure was facilitated by the Roman legal framework, which provided remedies designed to govern the relationships between the individuals engaged in these tasks.
The workshop program is here.
Legal historians under the Roman aqueduct near Caesarea, Israel, 2017

 

Thursday, July 25, 2019

Streams of life and strife

Table IX of the Lex Irnitana – Museo Arqueológico de Sevilla
(image: Red Digital de Colecciones de Museos de España, http://ceres.mcu.es)
Last week Otto Vervaart's always learned Rechtsgeschiedenis Blog featured a post on water law: "Streams of life and strife: Water as a legal matter in Roman law". Some highlights:
The project Roman Water Law at the Freie Universität and the Humboldt Universität in Berlin helps to look at regulations concerning water and its uses according to an interesting scheme. Legal attention to water has a very long history.
*****
The core of the virtual collection is a combination of legal sources found in the Corpus Iuris Civilis, three individual leges (laws) and the Codex Theosodianus with texts from Roman authors who touched the subject of water. The results are 572 entries with a Latin text and English translation to which one of ten newly defined categories have been assigned.
The harvest for Roman laws in the technical sense, leges approved by the senate of the Republic, may seem meagre with just three laws. However, one of them, the Lex Flavia Irnitana from AD 91, was only found in 1981. The fragments of six out of originally ten bronze tables are now held at the Museo Arqueológico in Seville {Hispania Epigraphica, no. 5058). This law, dated around 91 BC, is the most complete surviving example of a Lex Flavia, a municipal law. Chapter 82 of the Lex Irnitana deals with drainage and creating and changing roads, paths, canals and sewers, for which only the duumviri, a pair of magistrates elected for one year, are authorized if there is a municipal decret for their actions.
*****
The core of the project are the classifications added to each entry. There are ten main types of classes, starting with definitions (44), followed by
Right to use water
Constructions to use water – Process of construction and maintenance
Legal protection of water use
Urban praedial servitudes of water
Regulation of damages and prevention of damage caused by water
Consequences of changes caused by water
Water as a route of transport
Water as a border
Buildings at banks, coasts and beaches 

Friday, July 5, 2019

A revised history of Chilean water law

The Chilean water code of 1981 is often held up as a paradigm of private property in water. Thomas Miller Klubock's new article in Environment and History, "The Early History of Water Wars in Chile: Rivers, Ecological Disaster and Multinational Mining Companies", provides some historical context. The abstract:
This article examines an early water war in Chile between local agriculturalists and the North American-owned El Teniente copper mine. It recovers a hitherto unknown history of ecological degradation caused by industrial copper mining during the twentieth century in Chile. It argues that contemporary water wars in Chile, usually viewed as a product of the privatisation of water rights in 1981 and the expansion of foreign investment in the mining sector during the 1990s, combined with the impact of global climate change, have roots in the appropriation of water in Andean rivers by North American companies at the beginning of the twentieth century. The article’s thesis is that the Chilean state subsidised the mining industry by granting water rights and turning a blind eye to mining companies’ contamination of rivers relied on by agriculturalists for irrigation. Finally, the article traces conservationist responses to the ecological crises produced by contamination of water and soil by the El Teniente mine, which was owned by the Kennecott Copper Company. It demonstrates that conservation of water resources was employed by estate owners as a means of asserting private property rights against the interests of mining companies.
Nicolas Schubert, Fundición de cobre en mina El Teniente, Codelco Chile

Thursday, June 13, 2019

Administrative procedure and environmental regulation

Legal History Blog recently published brief pieces by scholars visiting at Princeton's Davis Center this year, in which they wrote about their research. Some excerpts from Angela Creager's:
Why has environmental law, an area of widespread popular engagement and legal activity, met with such limited success in the last half century? Corporate money? Special interests? Neoliberalism? These usual villains are not innocent, but I am interested here in how companies and their lobbyists used provisions of law, namely the 1948 Administrative Procedures Act (APA), to thwart stronger regulation....
My focus has been the Toxic Substances Control Act (TSCA) of 1976. This was the first US law aimed at providing environmental and health oversight of all commercial chemicals. The act was introduced in 1971 as part of the Nixon administration’s environmental initiatives, and different versions of the bill passed both houses by the fall of 1972, only to die in Senate-House Conference Committee during the 92nd session of Congress. In 1974, amidst the Watergate scandal and Nixon’s resignation, the Senate and House of Representatives again passed different versions of TSCA. Once again, the legislation died in committee. Early on, it appeared that none of the bills would not become law, a simple solution for its opponents.
In July 1975, a scandal reignited political pressure for chemicals regulation. Dozens of workers at chemical factory in Virginia were poisoned through their exposure to Kepone, a neurotoxic pesticide manufactured in the plant. The Ford administration made it clear that some version of TSCA needed to be signed into law to appease political pressure. Representatives for the Manufacturing Chemists Association (MCA), a trade group representing the chemical industry, began hammering out the details of a bill with Congressional staffers. The final statute specified numerous procedural hurdles for EPA in fulfilling its mandate to regulate chemicals. These hurdles were not conceptual slipups, but compromises made to produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer who actually helped write the provisions, has said: “The 1976 Toxic Substances Control Act (TSCA) contains such obscure and inconsistent phrases that its supporters were doomed to frustration.” The legal scholar Kevin Gaynor, who analyzed the law shortly after it was enacted, called it “a regulatory morass.” Even its provisions “ensuring transparency of safety data” became “rigid procedural handcuffs.” This was a statute designed to make industry oversight difficult.
Many of these complexities had to do with how TSCA addressed requirements of the APA. For example, rather than make toxicity testing of commercial chemicals required for either old or new chemicals, the bill stipulated that EPA would have to issue a rule to require testing of any individual substance. Requiring rule-making on a chemical-by-chemical basis meant that the agency could only request testing data on a limited number of commercial chemicals, of the 60,000 on the market and thousands added each year. 
(from Environmental Working Group)

Tuesday, June 11, 2019

CFP: Race and Resilience Otherwise (for ASEH 2020)

[I'm passing on this call for papers for a panel being organized for the next American Society for Environmental History meeting. Readers should feel free to send me any relevant announcement!]

Race and Resilience Otherwise

What does “resilience” mean for black, brown, and indigenous people living in systemic racism? This guiding question builds from the spirit of the conference theme, “Reparative Environmental History,” and celebrates the discipline’s ongoing engagements with structural racist, classist, and colonial environmental oppression. Though resilience is used to orient us to the future of our environments (i.e. gaining abilities now to respond effectively to future catastrophes), like reparations, the concept actually requires close examination of past processes, active decentering of white settler histories, and embracing narrative frameworks that work with critical race theory. In reality, folks of color have been resilient and forced into holding patterns of “resiliency” within an unequal, unjust system for generations. In this panel, we want to continue thinking resilience otherwise by articulating critical environmental histories of race.  

This panel calls for contributions that center — rather than “include” — black, brown, and indigenous environmental histories to help us unpack this problematic of resilience, and therein reconsider the content and meaning of contemporary environmental restorative justice. We welcome scholarship on, for instance, histories of environmental racism, struggles for environmental justice, food sovereignty, colonial land dispossession, histories of BIPOC* environmental community building and belonging, and ways of knowing nature outside of modern, white supremacist capitalism.

*Black and Indigenous People of Color

Please submit proposed paper title and brief abstract (250 words max), along with your name, institution, and preferred email address to Lisa Avron (lisa.avron@gmail.com) by July 3rd.

Friday, April 19, 2019

LBJ's Green Great Society and environmental law

Dan Farber recently posted at Legal Planet on the environmental aspects US President Lyndon B. Johnson's "Great Society". From the post:
When he announced the Great Society in a commencement speech at the University of Michigan, Johnson gave the environment a leading place. He began his May 1964 speech with the plight of American cities, where he decried “the decay of the centers and the despoiling of the suburbs.” Then he turned to the environment: “The water we drink, the food we eat, the very air that we breathe, are threatened with pollution. Our parks are overcrowded, our seashores overburdened. Green fields and dense forests are disappearing.” He added, “For once the battle is lost, once our natural splendor is destroyed, it can never be recaptured. And once man can no longer walk with beauty or wonder at nature his spirit will wither and his sustenance be wasted.”
Johnson’s Presidency was accompanied by a surge of environmental laws. Here are some of the laws he signed:
1963 The Clean Air Act
1964 The Pesticide Control Bill
The Water Quality Act
The Wilderness Act
1965 The Water Resource Planning Act
The Water and Sanitation Systems in Rural Areas Bill
The Solid Waste Disposal Bill
The Safe Water Conservation Act
1966 The Air Quality Act
National Historic Preservation Act
Endangered Species Act
1967 The National Water Commission
Wild and Scenic Rivers
Wetlands Preservation Bill
Many of these laws are remembered today only as the preludes to the stronger laws that followed in the 1970s. But these Johnson-era laws provided the foundation for that later legislation, and they set the precedent for vigorous federal protection of the environment.
For a different list of environmental laws signed by LBJ, see here.

Friday, April 12, 2019

Coke, Popham, and Commissions of Sewers

Eric Ash's The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016) was recently reviewed by Bob Silvester in Environment and History (for an interview with the author see here). Famous common law judges play a big role in this story. The review reports that Ash:
Sir John Popham,
copy by George Perfect Harding, after unknown
succeeds admirably though is in fleshing out the procedures – there is a masterly commentary on the commissions of sewers – and events that have been dealt with only cursorily in the past. Lord Chief Justice Popham’s plans to dry out the Great Level, which resulted in little more than the construction of a large drain known as Popham’s Eau lying east of March in Cambridgeshire, seemed an obscure event when I worked in the Fens in the 1980s...; just what Popham sought to achieve and how it fitted into the overall sequence of drainage ventures is now much clearer through the careful analysis of archival material.
Regarding the author's statement that his "principal goal is to use the drainage projects to connect the broader political, economic, social and environmental developments of the era", Silvester writes that "there are times when fenland drainage appears to be subsumed within a broader discourse as simply an outstanding example of state-building in progress. It accounts for the lengthy digression on Lord Chief Justice Coke’s interference in fenland affairs around 1609".

For more on Commissions of Sewers and drainage law, see here.

Saturday, April 6, 2019

The "government take" and environmental protection

Suncor oilsands mine near Fort McMurray (Todd Korol, Toronto Star)
Though Israel's coming elections revolve around other issues (and non-issues), a major political issue in Israel over the last decade has been how to divide the profits of the country's natural gas finds between the developers and the public (the legal owners of the resource). While environmental groups have argued - and this has also been my natural inclination - that the public's ownership should be expressed with a relatively large "government take" (the percentage of revenue paid over to the state in the form of royalties and taxes), I have also noted that increasing the government's financial interest in the gas decreases its motivation to effectively regulate the environmental aspects of its development.

Hereward Longley's recent article in Environment and History, "Conflicting Interests: Development Politics and the Environmental Regulation of the Alberta Oil Sands Industry, 1970–1980", provides historical support for this argument. The abstract:
This article examines the relationship between development politics and environmental regulation and research during the first commercial development phase of the oil sands industry. As demand for oil grew after the Second World War, and oil supplies from the Middle East became less stable, oil companies began building facilities to produce synthetic oil from the bitumen deposits in north-eastern Alberta. The commercialisation of the oil sands industry coincided with the formalisation of environmental policy at both the provincial and federal levels. When the Progressive Conservative Party, led by Premier Peter Lougheed, formed a government after winning the 1971 election, it strengthened and expanded the scope of environmental regulation into the mid-1970s. The 1973 oil crisis changed the economic viability and importance of the oil sands industry. For Lougheed, the oil sands industry became a cornerstone of the PC government’s goals to diversify the Alberta economy. To save the Syncrude project after Atlantic Richfield withdrew its thirty per cent stake in the consortium in December 1974, the Alberta government bought a ten per cent position along with the federal government and Ontario. This article argues that investing in the oil sands industry created a conflict of interest for the Alberta government, as it became both the regulator and the developer of the resource. Using a range of archival sources and oral history, it shows how Alberta’s environmental policies and research programmes were sidelined by the Lougheed government in the latter half of the 1970s, culminating in the cancellation of the Alberta Oil Sands Environmental Research Program in 1980. The marginalisation of environmental regulation and research has contributed to the environmental impacts of the oil sands industry on ecosystems and Indigenous communities, and limited public awareness of environmental change.

Friday, March 29, 2019

Mongolian hunting regulations

The Qianlong Emperor Hunting Hare, by Giuseppe Castiglione (1755)
Last year Inner Asia published Khohchahar Chulu's "The Formation and Regulations of the Military Hunt in Qing Mongolia". (Thanks to Mitra Shirafi at Legal History Blog for noting it.) The abstract:
In the Mongolian tradition, hunting and war have had strong connections with each other. During the Qing Empire, Mongolian hunts were not only local practices, but were also involved in the Qing empire-building project. On the other hand, the collective hunt itself was by nature a dangerous activity that contained potential physical risks from wild animal attacks as well as human errors. It is conventionally understood that the hunt therefore must have been well organised in order to secure success and security. But how a hunt was organised and operated in reality has not yet been well examined. This study explores the organisational structure and regulations of a military hunt in Qing Inner Mongolia, a geographically important zone where both the Manchus and Mongols actively held hunts. The primary focus of this article is the nineteenth-century Alasha Banner grand hunt, a well-organised and documented Mongolian military hunt from the Qing period.

Friday, March 22, 2019

The making of Calcutta

More on Debjani Bhattacharyya: Rohan D'Souza recently reviewed her Empire and Ecology in the Bengal Delta: The Making of Calcutta (Cambridge UP, 2018) for H-Water. D'Souza writes:
Empire and Ecology in the Bengal Delta announces a shift in gears within the bourgeoning and bustling field of the environmental histories of South Asia. Instead of taking the familiar route that revisits themes in the existing canon—forests, irrigation, and carnivore control—Debjani Bhattacharyya cuts an altogether fresh path by exploring how radical ecological change was critical to the making of urban colonial Calcutta (today’s Kolkata). The core claims in the book pivot on the many arduous British efforts from the late eighteenth century onward to transform Calcutta’s soggy marshy origins into landed concrete spaces—the firmed-up surfaces upon which were built residential, commercial, and industrial infrastructure and the basis for widespread financial speculation in real estate.
Whereas much of the detail on the drying out of British India’s premier colonial city can be found in a fairly voluminous documentation on drainage works, reclamation projects, and hydraulic engineering schemes, these admittedly technical accounts, we are cautioned, fail to meaningfully grasp the actual “secrets-of-land-making” (p. 1). transformation of “floating watery soils” into firm land, Bhattacharyya argues, was principally an ideological project that was profoundly underwritten by the notion of landed property, which, as a “legal technology” to “demarcate land, marsh, accretion and water,” actively triggered the clotting of Calcutta into urban soil (p. 23). Colonial landed property, moreover, by being set on a treadmill of economic valuation inevitably transmuted into the archetypal capitalist commodity: subject to the logics of the market and the relentless pursuit of profit. Unsurprisingly, therefore, as Calcutta in the early decades of the twentieth century began to explode into a crowded city—short on space, cramped with people, and lacking affordable housing—a thriving and ferocious urban land market burst forward. While Bhattacharyya does provide a riveting account of the aggressive jostling for land among an increasingly vocal working class, sundry lobbies of builders, extortionate landlords, the oscillating fates of rent speculators, and various interventions by municipal authorities, the discussion, however, is more pointedly aimed at returning us to the “secret.”
What finally emerged from the protracted confrontations over land scarcity, we are told, was a less advertised, if not entirely unstated, consensus among the various contending urban interests: that the outlying marshes and untidy swamps were “lands-in-waiting” rather than distinct hydrological phenomena (p. 172). This unanimous and determined call for cutting off the city from its “watery hinterlands,” in Bhattacharyya’s estimate, actually sought to mask a radical ecological rupture by which land and water were meant to be split into distinct and separable entities, instead of being acknowledged as ecologically entwined domains and integral to Bengal’s deltaic environments.
More at H-Water.

Friday, March 15, 2019

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:
In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.
Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

Wednesday, February 27, 2019

CFP: Law & Environment in the Indian Ocean World

[Excerpted from H-Announce:]

Ordering the Anthropocene: Law & the Environment in the Indian Ocean World  

A workshop convened by Debjani Bhattacharyya (Drexel University) and Laurie Wood (Florida State University)4-5th October 2019

Hosted by the Department of History,  Drexel University, with the generous sponsorship of the American Society for Legal History & Drexel University

What can historians of law achieve from engaging with their colleagues studying environmental changes over time? How have emerging regulatory regimes (imperial, property-oriented, maritime, medical, etc.) joined the domains of science and law in new ways? And how can legal historians retool their methods to study deep histories of landscape transformations and climate? These questions are especially pertinent for the Indian Ocean region, where these concerns have both past and contemporary relevance: e.g. rising sea levels in the Maldives and Andaman Islands; coastal erosion and disputes over new-land formation along the littorals of Bay of Bengal; island-building in Singapore (with sand from Gulf states); disaster relief following the 2004 tsunami and earthquake, which especially affected Indonesia and Malaysia; food security around the Horn of Africa; and some of the world’s busiest shipping routes.

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The workshop will consist of 4 panels, with 2 presenters in each panel. We will pair legal historians with historians of environment to explore how common terminology around evidence, witness, reason, expertise is affected by concepts of time that are distinct in each discipline. We welcome papers exploring the following questions broadly:

  • Where does law/do legal regimes collide with the material world?
  • Where/when/how/why do natural phenomena become entangled in ordering regimes?
  • How do these relationships (re)configure the human as social (e.g. relational, hierarchical, vocal) and material (e.g. embodied, constrained by lifespan, etc.)?

Monday, February 25, 2019

The Wild and Scenic Rivers Act at 50

John Day River, Oregon
Michael Blumm and Max Yoklic recently posted "The Wild and Scenic Rivers Act at 50: Overlooked Watershed Protection". The abstract:
The Wild and Scenic Rivers Act (WSRA) marked its fiftieth anniversary in 2018 without much fanfare. The WSRA has been somewhat overshadowed by the Wilderness Act, which preceded it by four years, and by the National Environmental Policy Act and the pollution control statutes which followed in the 1970s. But the WSRA was a significant conservation achievement, has now extended its protections to over 200 rivers, and has the potential to provide watershed protection to many more in the future. This article explains the statute and its implementation over the last half-century as well as a number of challenges to fulfilling its laudable goals of protecting free-flowing rivers, their water quality, and their “outstandingly remarkable values.” We make a number of suggestions to the managing agencies and to Congress if the WSRA’s achievements over the next half-century are to match the last fifty years, including reviving congressional interest in study rivers, updating managing agencies’ river plans to focus on non-federal lands within river corridors, and ensuring that those river plans provide the watershed protection Congress envisioned when it included a significant amount of riparian land within WSRA river corridors. We also call for a new emphasis on rivers that should be studied for their restoration potential and for more states to take advantage of the statute’s unusual pathway for state-designated rivers to gain WSRA protections.

Friday, February 22, 2019

Fishing rights and colonial government

Shourya Sen and Richard Adelstein recently posted "Fishing Rights and Colonial Government: Institutional Development in the Bengal Presidency". The abstract:
We examine the evolution of fishing rights in colonial Bengal through a series of cases heard at the Calcutta High Court in the 1880s and culminating in the passage of legislation in 1889. We posit an implicit relational contract between the colonizing British and the landowning class in colonial Bengal as a way to understand the concurrent evolution of fishing rights and institutions of governance in the region. The system of incentives created by this contract determined the development of fishing rights at a crucial moment in the history of colonial Bengal and, more broadly, became a primary mechanism of institutional change in the region. The analysis also shows the Calcutta High Court to have acted, albeit in vain, as a truly independent judiciary.
Macchi, a Muslim caste of fishermen, from Tashrih al-aqvam (1825)

Wednesday, February 20, 2019

Roman law and modern nuisance

Vanessa Casado Pérez and Carlos Gómez Ligüerre recently posted "From Nuisance to Environmental Protection in Continental Europe". The abstract:
This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial divergence and the trends towards similar rules across jurisdictions, the paper explains the potential forces of convergence at the European level: the Draft Common Frame of Reference, the European Union Environmental Liability Directive, and the decisions of the European Court of Human Rights. It is important to note that this article only focuses on regulations and remedies related to non-trespassory invasions on real property, not on non-invasive, aesthetic nuisances.

Sunday, February 17, 2019

Tyne After Tyne

H-Water recently posted a review by Leslie Tomory of Leona Skelton's Tyne after Tyne: An Environmental History of a River's Battle for Protection, 1529-2015 (White Horse Press, 2017). An excerpt from the review:
The first two chapters deal with the earlier period from 1529 to the mid-nineteenth century. The history begins when the Crown named the mayor and aldermen of the Newcastle Corporation the conservators of the Tyne and its tributaries via a parliamentary act. The purpose was to preserve the freedom of navigation from encroachment and to prevent silt from blocking the channel. From that time, the river’s conservators considered applications from riparian landowners to do works that could alter the river’s flow, such as the construction of docks. The corporation’s activity in this role was only sporadic to 1613, when new bylaws were passed regulating various activities along the Tyne, such as waste disposal and the construction of wharves. From this point onward, the corporation every year appointed water bailiffs and river jurors to monitor and hear cases of contraventions. These institutions continued to exist until 1835 when municipal reform laws replaced them with a River Committee. Skelton argues that the activity of the Tyne river court can be seen as a form of environmental regulation that prevented the overdevelopment of the river. In doing so, she tries to seek similarities with the environmental regulations that would emerge in the twentieth century, while recognizing that the motivations were to preserve the river for economical motives. While she is correct to point out that modes of environmental preservation existed long before the late nineteenth century, the commonalities with twentieth-century movements, which she mentions in a number of places, seem overdrawn.
The next chapters describe the Tyne Improvement Commission (TIC) activities from 1850 to 1968. The commission was created by Parliament with a mandate to foster the river’s economic utility. This commission’s principal interest was above all on the trade that flowed down the river. As in the earlier period, this included keeping its central channel deep and free-flowing for ship traffic. It developed a degree of expertise by employing a well-paid engineer to report on proposed works along the river, as well as waste disposed into it. The TIC was concerned with waste discharged into the river but only because it could be a barrier to navigation. This narrow interest meant that almost all applications for docks, sewers, and other structures along the river were approved. Whatever interest there was in preserving nature, on an institutional basis at least, was found in the Tyne Salmon Conservancy (TSC). It was founded in 1866 in the wake of Royal Commissions on salmon conservancy and was given the mandate to protect the fish in the river. Skelton argues that the TSC and its successors built up knowledge of the state of the fish in the Tyne (and other rivers in the area) that, while not producing immediate results, nevertheless proved valuable for environmental protection in the long term, especially after the 1950s. For example, scientific studies from the 1920s and 1930s explored water quality and fish species. The TSC made a concerted effort in these years to motivate a cleanup of the river as it became ever more polluted with effluent. Efforts to get the funding necessary for this from the central government, however, failed so that by 1940s, the Tyne was in worse shape than ever before. The 1950s were little better in this regard. The slow recovery from the Second World War and its accompanying austerity offered little scope for spending on environmental protection, even as local campaigns tried to bring attention to the problem. Untreated sewage continued to flow into the river. Finally, in the 1960s the situation began to change. Two new bodies were created to conserve watercourses in the area and to build sewer systems to spare the rivers. The Tyneside Joint Sewerage Committee organized the funding for a new sewer system, with construction beginning in 1972.

Saturday, February 2, 2019

Call for applications: Masters/Doctoral/Postdoctoral fellowship -- Water Law in Mandate Palestine

This call is for a one-year or semester-long fellowship for a graduate student wishing to work on the history of water law in Israel/Palestine or a related topic (such as the history of water law in a related jurisdiction, the history of related areas of law in Israel/Palestine, legal transfers in the British Empire, etc.). The fellowship is part of my Israel Science Foundation-funded research project: "Private and Public Water Rights in Mandate Palestine and Early Israel". 

TAU Law and its Berg Institute for Law and History are vibrant and collegial centers of legal history where candidates can expect interactions with a variety of interesting scholars in the field, and access to a wide range of historical and legal databases is available.

Eligible candidates will be one of the following:

  • a recent recipient of a doctoral degree in a relevant field wishing to spend a year of postdoctoral research at TAU Law;
  • a candidate for a research degree in another university, or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;
  • an applicant for an LLM or PhD at the Meitar Center (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program).
  • a cover letter describing a research agenda and its relevance to the topic of the history of water law in Israel/Palestine
  • c.v.
  • transcript of grades from last degree
  • writing sample

The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds, and also some funding for travel to conferences. TAU students will also receive a tuition waiver. The fellow may re-apply for funding in subsequent years, university rules permitting.
The fellow will be expected to participate in weekly workshops and seminars at TAU, and in general be in residence at TAU.
Interested individuals should send the following documents (in English or Hebrew) to berg@tauex.tau.ac.il by 15 Feb 2019:
Notification of the fellowship award will be made quickly.
Please address any inquiries to berg@tauex.tau.ac.il.
Image result for buchmann law tau

Monday, January 28, 2019

The Santa Barbara oil spill

Richard Frank posted yesterday at Legal Planet on the 50th anniversary of the Santa Barbara oil spill. Some excerpts:
In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.
Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.
Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.
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The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation. 

Friday, January 18, 2019

Trends in environmental treaty-making

Legal Planet recently mentioned the University of Oregon's International Environmental Agreements Database Project. The project has a ton of information on environmental treaties, including lists of treaties by date, subject, and lineage; a library of historical documents on marine mammal protection; and more.

The graph below (click here for a larger version), taken from the main page of the website, charts the number of of environmental treaties, protocols, and amendments by decade (up to 1950) and then by five-year period. The quantitative data highlight some features that beg for some interpretation and context: A small surge in activity in the 1890s (not surpassed until the 1940s), a huge jump in the 1950s (more than three times the activity than the preceding decade), and a continuing drop since the mid-1990s peak (presumably associated with the 1992 Rio Earth Summit).
Thoughts anyone?

Tuesday, January 15, 2019

Rivers, Rifles, Rice, and Religion

Law and History Review recently carried a review by Jaakko Husa of John Haley's Law's Political Foundations: Rivers, Rifles, Rice, and Religion (Edward Elgar, 2016). From the review:
In this extraordinarily sweeping volume, Haley analyzes and discusses how certain legal and political systems historically evolved in varying ways. Importantly, these systems share common threads when it comes to the political foundations of their law and the modes of their law's enforcement. Haley explains and compares three, which he calls dominant, legal orders so that past and present are bridged. The underlying idea is to bind the storytelling around narratives of rivers, rifles, rice, and religion.
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Chapter 2 is based on the idea that “legal institutions develop in conjunction with the capacity of rulers to appropriate wealth and acquire revenue and the demands of needs they confront for the allocation of the material resources they control” (37). This chapter also explains the storytelling narratives of the book. First, basic geographical conditions, such as climate, terrain, and, first and foremost, rivers, are pre-eminently determinative: “Law and ‘civilization’ emerged first along rivers” (40). The Tigris, the Indus and the Ganges, the Nile, the Yellow, and the Yangzi rivers are mentioned.
Control of rivers and their wealth-producing basins has been, argues Haley, tremendously important for the development of legal and political systems. A second key factor is warfare (i.e., rifles) because warfare and the accompanying need for better weaponry and human resources had continuing political and legal consequences. Third, rice production also had major consequences for the foundations of law, as it requires interdependency and cooperative behavior. Fourth, religion is key because of its storytelling narrative, as enduring political and legal orders reflect the commonly shared beliefs and values of those who are governed.
Chapter 3 then deals with the specific foundation of public law and private ordering in China by discussing rivers, rifles, and rice. The patterns of agricultural production caused shared habits of interdependence and cooperation influencing the modes of social organization in the whole region connected by rivers. Haley explains the tension between so-called Confucians and Legalists, showing that Legalist thinking had an important role in China to the effect that morality and law were seen as completely different domains. Here law remained a secondary instrument of social control enhancing the birth of a centralized form of governance without a religious base. On the whole, for Haley, China exemplifies public law ordering.
Chapter 4 then explains in a detailed manner the foundations and history of private law and private ordering in Japan by emphasizing the role of rice and warfare. In Japan's case, the lack of rivers was a key factor that prevented the birth of the centralized rule that had taken place in China. Rice production was the major source of sustenance and wealth, but producers were denied access to governmental power. This led eventually to warrior rule and development of adjudication. In the absence of imperial power, adjudication of private claims developed into a routine function of governance. Even during the Shogunate, the regulatory reach of central government remained modest. In short, Japan exemplifies private law ordering.
The book also includes chapters on law in Europe and in Hispanic America.

Sunday, January 13, 2019

Savagery, civilization, and property VI: Conclusion

In the last post we looked at how stadial thought reached modern commons thought through the worlds of colonial development and conservationism. This post concludes the series.

I have argued in this series of posts that various strands of modern commons theory, though based, as well, on novel theoretical and empirical work, seem to lean heavily on the structures, examples, and sensibilities of stadial theories of civilization that rose to prominence in the late eighteenth century. These Enlightenment-era ways of thinking are admittedly outmoded as theories of history, but why should the historical sources of current theory matter?

Beyond the important goal of understanding the sources of our theories, foregrounding the continuing influence of stadial thinking on current theories of the commons should help us question some aspects of these theories by highlighting some of their oddities — such as the disproportionate weight of studies of hunting, herding, and the like among a far more diverse universe of commons situations that could be studied.

Possibly more important are the residues of the narrative of civilizational progress that continue to adhere to property theory. Carol Rose has noted ("Evolution of Property Rights", in 2 The New Palgrave Dictionary of Law and Economics 93, 94 (1998)) the quasi-religious belief in the advantages of private property held by some property theorists, especially those associated with the modern law and economics movement, according to which “an evolving property rights regime might lead humankind toward a new kind of earthly Paradise,” “a secular Eden of peace and plenty.” Rose’s own work, as well as that of some of the other commons theorists surveyed above, is free of this bias, remaining pointedly agnostic as to the direction of evolution among property regimes. But others — not only law and economics types but Hardinians and others — seem to accept (though they might not put it in these terms) that private property represents a more advanced stage of civilization than does the commons. This type of thinking lies at the root of many neoliberal policy prescriptions, from the importance of secure private property regimes to developing countries to the salience of cap-and-trade as a solution for climate change and other environmental problems.
Lucas Cranach the Elder, The Garden of Eden (1530)
On the other hand, the Romantic and Marxist reactions to the Enlightenment stories of stadial progress continue to inform another set of prescriptions and critiques, most prominent among them the many studies of successful indigenous commons management following Ostrom’s work. Whatever the normative and ethical attractions of these positions, it seems that their appeal rests partly on a narrative of fall from grace, a sort of negative image of the economists’ story described by Rose, and a yearning to return to an Eden of primitive and community-based commons.

Finally, on a more general level, I would like to highlight the central role that historical narratives or myths continue to play in nominally theoretical and normative scholarship. Myths are important, but so is clear-headed thinking about policy. By recognizing the myths on which much commons scholarship is built, we might be able to improve it.

I'd be happy for readers' thoughts. The full article is here.

Wednesday, January 9, 2019

The interplay of case law and regulations

Dave Owen posted had this interesting thought this week at Environmental Law Prof Blog, regarding a recent discussion on canonical environmental law cases:
The idea of a canonical environmental law case might be an oxymoron.  After all, with a few constitutional law exceptions like Lujan, most classic environmental law cases interpret statutes, which generally means the case is less important than the statute, which suggests, in turn, that the statutes are really the canon.  But that's kind of boring; if we agree that the environmental law canon is the Clean Air Act, the Clean Water Act, RCRA, and so on, that makes our field sound dull in comparison to fields where cases really have defined the law.  So perhaps, if a canon, to speak metaphorically, includes the giant trees within a forest of law, we should treat the underlying statutory and constitutional framework as the soil out of which those trees grow.
But even if my strained metaphor works, that still doesn't explain why the canon should involve cases.  Cases are good teaching devices, and they do matter, but they're badly overrated.  In many areas of environmental law, regulations have much more reach and importance.  So perhaps the question we professors really should be debating, as we procrastinate class preparation and the final stages of grading, is which environmental regulations make up the field's canon. 
I agree with Dave's point that statutes and regulations are much more important in environmental law than case law (and that this is a challenge in teaching the field!). However, over time I have become increasingly aware of how important litigation has been historically in spurring and shaping environmental regulation, a point made by (among others) Karl Boyd Brooks in Before Earth Day.

I recently had a conversation with an Israeli (non-lawyer) environmental professional who had been involved in drafting noise regulations in the 1980s, who explained to me that they were designed to reflect the guidelines laid out by an Israeli Supreme Court nuisance case in the 1970s. From my lawyer's perspective this made no sense, as the case was decided according to traditional principles of nuisance law, which should have been largely irrelevant to the noise regulations, enacted under statute. But to the engineers and scientists working on the regulations, the rules laid out by the court seemed to represent some kind of eternal truth, one they were bound to give expression to in the regulations. I think that this type of thing has happened quite a lot.

Monday, January 7, 2019

Public property and the rise of the individual

Historical articles on the commons keep coming. Victorian Studies recently published an article by Daniel Stout, "Uncommon Lands: Public Property and the Rise of the Individual". (I'm happy to say that the article cites extensively from my "How Blackstone Became a Blackstonian".) The abstract:
This article examines the theoretical hurdles that the English legal system faced in trying to come up with a coherent conception of public land in the Victorian period. Rapid urbanization and industrialization meant that the pressure to preserve open space was intense, but a conception of public land—land that belongs to everyone—was strikingly absent from English law. “The commons,” this article stresses, is importantly different from “the public.” The absence of the public from the English theory of property helps us see the ways in which the regime of liberal private property continued to carry traces of older customary forms of tenure, and to be governed by ideas (use, access, etc.) that complicate—and, often, contradict—liberal assumptions about the nature of property.
And an excerpt:
William Hartley, Justice Scrutton
[W]e have inherited from the nineteenth century a certain story about property as an institution whose rise inevitably entails the cancellation of some prior collective. And of the available names for that prior collective (family, status, clan, custom, etc.), none attaches us to it quite like “the commons.” Compared with “commons,” terms like “family,” “status,” “clan,” and “custom” seem both too privative—“the commons” has an openness and flexibility that the unnervingly tribal “clan” or aristocratic “family” clearly lack—and somehow not personal enough—the “commons” grounds an affective warmth that the cold institutionalism of “status” and the archaic proceduralism of “custom” can’t match. The appeal of the commons is that it allows us to lament the privacy of property without, at the same time, having to sacrifice an individualism—the capacity for meaningful, personal attachment—that we have come to cherish. The commons is, in this sense, liberalism’s name for what it doesn’t like about liberalism. Hence, the perfect fluency of Thomas Edward Scrutton (a highly successful commercial lawyer) complaining in 1881 that “the speculative builder and the wealthy landowner alike prey upon roadside wastes, and neighbouring Commons”: “the poor, who are deprived of any interest in the land, and the public, more and more restricted to the hard high road, are affected by the Policy of Enclosure and Individualism”. Reading closely, one can see that Scrutton elides what are actually three nonidentical constituencies—the “commons,” “the poor,” and “the public.” But to the degree that the elision works it’s because commonness could already, in 1881, serve as a kind of penumbral keyword for the opposite of “Enclosure and Individualism.” To see that the “commons” continues to function in this generic way, one need look no further than Michael Hardt and Antonio Negri’s recent call for a “democracy of the multitude” in which “we all share and participate in the common... —the air, the water, the fruits of the soil” and focus on “the practices of interaction, care, and cohabitation in a common world”.