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.
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.
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”.

Friday, January 4, 2019

Savagery, civilization, and property V: Colonial development and Neo-Malthusian conservationism

In the last post in this series we saw how Enlightenment-era stadial thought was passed on to modern commons theory through the aboriginal property rights debate among twentieth-century ecologists. Today I'll discuss what I believe two more lines of influence. (The full article is here.)

The first was by way of the work of anthropologists and scientists associated with British colonial development efforts under the aegis of colonial administrator Malcolm Hailey. Lord Hailey, after a career in the Indian Civil Service, was tapped to run the African Survey in the 1930s and the Colonial Research Committee in the 1940s, and was an advocate of multidisciplinary social science research, particularly anthropological, in the colonies.

The staff of Hailey’s African Survey seem to have created something of a nexus for stadial thought in the context of colonial development. London School of Economics anthropologist Lucy Mair’s chapter on land made heavy use of the stadial framework for considering “the evolution of the most suitable form of land tenure”:
Lucy Mair
In some areas land custom is changing rapidly under the influence of new conditions, such as the increase of the pressure of population or the spread of a market economy. These changes will eventually involve official intervention . . . ; the need must, for example, be envisaged for the definition and recording of title . . .
There is nothing peculiar to Africa in the general direction which the evolution of land custom is taking; its adjustment in response to economic changes is a natural process which would occur independently of any action taken by the administration. 
In Mair’s analysis, traditional, communal forms of African land tenure needed to progress to more private rights in order to encourage development:
All discussions on the subject agree as to the value of giving security to the occupier of land, and the further advantage of what is generally termed the individualization of tenures. It has been urged on different occasions that the extended system of rights, vested in the family or group, has proved in Africa to be an obstacle to improved agriculture.
Strikingly, Mair also reported on Hardin’s tragedy of the commons, avant la lettre, herdsman and all:
Those who have had to deal with East African conditions have added the . . . argument that there is little incentive to natives to reduce their live-stock in order to prevent the wastage of pasture and consequent erosion, since nothing done by the individual will avail unless his neighbours take corresponding action . . . 
Moreover, in a remarkable anticipation of later legal scholarship that highlighted potential “comedies of the commons” and “tragedies” of its disappearance,  she also warned of the advantages of common property in some situations: “The question of rights over grazing commonages presents its own difficulties; the partition of grazing grounds into small units would be a bar to the adoption of that rotational use of pasture which many hold to be the best preventive of erosion in East African conditions.”

Wednesday, January 2, 2019

Climate science, history, and the law

Bill Kovarik recently posted at "Environmental history timeline" on a lawsuit against Exxon-Mobil, raising some interesting questions. Some highlights:
The lawsuit is based in part on an investigation by the Center for International Environmental Law which accused Exxon-Mobil Oil Corp. of working to dismiss climate change science and political action despite having had a scientific understanding of climate change “as early as” three or four decades ago, (or sometimes 1977, or 1968). The research grew into an “Exxon Knew” campaign. It was greeted with enthusiasm by environmentalists like Al Gore and Bill McKibben and with skepticism by Independent Petroleum Association of America and by Exxon-Mobil itself.
The key issue seems to be when Exxon knew climate change involved C02 from fossil fuels. Many of the Exxon Knew stories start along these lines: “In the 1960s, the American Petroleum Institute (and / or Exxon) made a troubling discovery.”
From an historical standpoint, the question ought to involve the broader context of scientific research. If API and Exxon researchers knew about climate change, what about the rest of the engineering and scientific community?
The fact is that the topic was a constant source of concern and research across the related scientific communities for a century and a half. Scientists concerned with climatology and glaciology and many associated geophysical sciences have studied climate change for generations. 
As seen here, the Washington Post carried an article May 4, 1953 on a Gilbert Plass paper at American Geophysical Union, quoting him specifically pointing to fossil fuel use as increasing climate warming.  Plass and other climatologists regularly published on these and related topics, with much of that generation’s research converged in the International Geophysical Year (1957-58).
Kovarik goes on to discuss many other scientists and others who warned about greenhouse gas induced climate change beginning in 1856.
So, clearly, Exxon knew, but so did everyone else.
In confining the discussion to Exxon’s own knowledge and actions, for example in a series of Inside Climate News articles, we have a legal strategy rather than an appreciation for the history of science. When we say “Exxon knew” as early as the 1970s or 80s, we ignore the long trail of scientific discovery beforehand, and we leave the field open to highly selective interpretations of trends.