Clean Air Act turns 50

Dan Farber recently posted on the subject at Legal Planet. Here's part of what he had to say:

No doubt we could design a more effective and efficient regulatory scheme if we were start over. But the Clean Air Act has nonetheless had a major impact.  Here’s what EPA has to say on the subject  — and remember, this is from the Trump EPA, which is no fan of regulation:

• Experience with the Clean Air Act since 1970 has shown that protecting public health and building the economy can go hand in hand.

• Clean Air Act programs have lowered levels of six common pollutants — particles, ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide — as well as numerous toxic pollutants.

• From 1970 to 2017, aggregate national emissions of the six common pollutants alone dropped an average of 73 percent while gross domestic product grew by 324 percent. This progress reflects efforts by state, local and tribal governments; EPA; private sector companies; environmental groups and others.

• The emissions reductions have led to dramatic improvements in the quality of the air that we breathe. Between 1990 and 2017, national concentrations of air pollutants improved over 75% for lead, carbon monoxide, and sulfur dioxide; 56% for nitrogen dioxide (annual); and 22% for ozone. Particulate concentrations improved more than a third between 2000, when trends data begins for ultra-fine particles, and 2015.

For more on the history of the Act, see here. 

Tension between public health and environmental protection

The latest issue of the Journal of Environmental Law has an interesting piece by Ben Pontin, "The Constitutive Tension Between Public Health and Environmental Protection—An Historical Perspective". Pontin writes (footnotes omitted):

According to David Hughes, the author of an early formative textbook, environmental law has ‘public health origins’. That is to say, many current regulatory bodies and laws are rooted in the sanitary boards created and statutes drafted during industrialisation to address cholera, typhus and other diseases then associated with urban life. Hughes makes the important point that environmental regulation has borrowed from public health regulation above all in the form of the use of criminal law as a tool of prevention of harm, rather than sanctioning of individual wrongdoing.

It is true that the laws and institutions of public health burgeoned during industrialisation, and that they defined progress at this time. Thus one of the most ‘progressive’ Victorian-era administrations—that of Benjamin Disraeli between 1874 and 1880—was elected on a manifesto echoing Cicero’s maxim salus populi sumprema lex esto (the health of the people is the highest law). This administration put on the statute book the Public Health Act 1875, which heralded a significant shift ‘towards a more modern, collectivist approach to public health’. Under the umbrella of Cicero’s maxim was also enacted legislation controlling air and river pollution.

Yet environmental legislation in and around this period has an autonomy in relation to public health that is not fully captured by Professor Hughes’ characterisation. For instance, whereas public health campaigners seeking the creation of a robust nationwide legal response to disease encountered obstacles in an age of ‘laissez faire’, those defending ‘nature’ found legislation easier to secure. An example is the protection of rural vegetation from chemical factories under the Alkali Act 1863, by means of a centralised, criminal administrative regulatory regime. Public health campaigners in respect of urban peoples were less easily heard within the law-making institutions than the elite proprietors of country estates, safeguarding trees, hedges and meadows. 

Charles Tennant's St. Rollox Chemical Works in 1831

Climate change and the US Clean Air Act

President Nixon signs the Clean Air Act of 1970

Richard Revesz recently posted a piece on climate change regulation, "Bostock and the End of the Climate Change Double Standard", forthcoming in the Columbia Journal of Environmental Law. The abstract explains that the article "performs a deep dive into the legislative materials surrounding the enactment of the Clean Air Act of 1970. After uncovering a treasure trove of sources that had not previously been part of the public discourse, it shows how, under the interpretative approach of each of the three opinions [in the US Supreme Court decision of Bostock v. Clayton County (2020)], greenhouse gases are unquestionably pollutants for the purposes of the Clean Air Act."

The article goes on to argue that

Despite the abundance of legislative history demonstrating Congress’ awareness of and concern about climate change, much of the evidence was not brought to bear in arguments in support of the Act’s authority to regulate greenhouse gases.... The analysis of the legislative history undertaken here, therefore, is largely new to the dialogue surrounding the Clean Air Act’s authority to regulate greenhouse gases, and provides considerable evidence of the scope of Congress’ awareness of issues involving global climate change preceding at the time of the passage of the Act.

*****

Despite the lack of virtually any discourse surrounding the references to climate change in the legislative history of the Clean Air Act of 1970, the legislative materials... provide considerable evidence that Congress understood and was concerned about issues surrounding climate change during the time of the Act’s debate and passing. 

The article goes on to detail the many statements and reports regarding climate change in general and global warming in particular that were part of the legislative history of the 1970 Clean Air Act Amendments. 

Pandemics: Legal history and anthropology

Trionfo della morte (1446)
(Galleria Regionale di Palazzo Abbatellis)

This coming November 6 the Centre d'Histoire et d'Anthropologie du Droit at Université Paris Nanterre will host (online) what looks to be a very interesting program on the legal history and anthropology of pandemics: "Les crises pandémiques à travers les âges. Approche historique, juridique et anthropologique". The program includes fifteen talks on legal responses to epidemic diseases and their regulation from ancient Athens to modern times.

Registration ends October 29.

Early American history and modern American environmental law

A recurring theme in scholarship on environmental regulation is the roots of the American approach to environmental regulation, and to what extent this approach is exceptional. 

April's issue of Studies in American Political Development has an article in this vein by David Brian Robertson, "Leader to Laggard: How Founding Institutions Have Shaped American Environmental Policy". The abstract:

The U.S. led the world in environmental policy in the 1970s, but now lags behind comparable nations and resists joining others in tackling climate change. Two embedded, entwined, and exceptional American institutions—broad private property rights and competitive federalism—are necessary for explaining this shift. These two institutions shaped the exceptional stringency of 1970s American environmental laws and the powerful backlash against these laws that continues today. American colonies ensured broad private rights to use land and natural resources for profit. The colonies and the independent state governments that followed wielded expansive authority to govern this commodified environment. In the 1780s, Congress underwrote state governance of the privatized environment by directing the parceling and transfer of federal land to private parties and of environmental governance to future states. The 1787 Constitution cemented these relationships and exposed states to interstate economic competition. Environmental laws of the 1970s imposed unprecedented challenges to the environmental prerogatives long protected by these institutions, and the beneficiaries responded with a wide-ranging counterattack. Federalism enabled this opposition to build powerful regional alliances to stymie action on climate change. These overlooked institutional factors are necessary to explain why Canadian and American environmental policies have diverged.

The Santa Barbara Oil Spill

H-Environment recently published a review by Samm Newton of Teresa Sabol Spezio's Slick Policy: Environmental and Science Policy in the Aftermath of the Santa Barbara Oil Spill (U. Pittsburgh Press, 2018). The Santa Barbara spill is often pointed to as one of the foundational moments of modern American environmentalism and environmental regulation, but Spezio seems to flesh out the picture.

Newton writes that Spezio

explores the relationships between oil pollution and political changes in the 1970s and asks how the Santa Barbara oil spill became a watershed moment in the history of environmental and science policy in the US, especially in regard to the Clean Water Act of 1972 (CWA). To answer this question, Sabol Spezio analyzes how the oil spill influenced the CWA and the National Environmental Policy Act (NEPA), as well as the formation of the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA). She then turns to the changing science and technology that became essential to understanding marine oil pollution and how that contributed to detecting water pollution in fresh water systems. She argues that the US government’s reactions to the Santa Barbara oil spill improved their ability to address controlling, measuring, and regulating water contamination on a federal level. 

Her argument is broken into three sections. Part 1 describes environmental science and policy before 1969. Before the oil spill, no entity was officially in charge of managing the oceans. Federal waters were regulated by the Bureau of Land Management (BLM) and the United States Geological Service (USGS) under the guidance of the very oil companies exploiting the resources located in those waters. Additionally, scientists used different protocols and technologies to measure oil pollution. Before 1969, water quality was measured by smell, taste, sight, and/or the presence of disease. The oil spill in California challenged that precedent, contending that measurement by the senses was inefficient. A flurry of new research methods and technologies, specifically gas chromatography, followed in an effort to estimate both oil in water and the dispersants used to combat oil pollution.

*****

As Sabol Spezio argues, it took a salient crisis, like the debacle that was the oil spill, to make regulatory change possible. Several events in the 1960s and ’70s, such as the publication of Rachel Carson’s Silent Spring (1962) and the Cuyahoga River fire, contributed to the salience of environmental degradation in the American attention cycle. Sabol Spezio adds to the literature by claiming that the Santa Barbara oil spill was not just one of many environmental crises but was the tipping point event that made the reform of US environmental regulation possible. 

Water pollution regulation: an economic analysis

Last year the Journal of Economic Perspectives published "US Water Pollution Regulation over the Past Half Century: Burning Waters to Crystal Springs?" by David A. Keiser and Joseph S. Shapiro. The abstract:

In the half century since the founding of the US Environmental Protection Agency, public and private US sources have spent nearly $5 trillion ($2017) to provide clean rivers, lakes, and drinking water (annual spending of 0.8 percent of US GDP in most years). Yet over half of rivers and substantial shares of drinking water systems violate standards, and polls for decades have listed water pollution as Americans' number one environmental concern. We assess the history, effectiveness, and efficiency of the Clean Water Act and Safe Drinking Water Act and obtain four main conclusions. First, water pollution has fallen since these laws were passed, in part due to their interventions. Second, investments made under these laws could be more cost effective. Third, most recent studies estimate benefits of cleaning up pollution in rivers and lakes that are less than the costs, though these studies may undercount several potentially important types of benefits. Analysis finds more positive net benefits of drinking water quality investments. Fourth, economic research and teaching on water pollution are relatively uncommon, as measured by samples of publications, conference presentations, and textbooks.

Cow trials and climate change

Sorry for the long silence! I just got April's Environmental History in the mail, and there's an interesting article by Keith Pluymers, "Cow Trials, Climate Change, and the Causes of Violence". The abstract:

In 1641, according to the vicar Thomas Johnson, Irish rebels in Mayo, in “meere hatred and derision of the English,” tried a group of English cattle for unspecified charges. They were convicted and executed. Many historians have pointed to this striking event as an example of the deep hatred underlying popular violence in the rebellion. The trials, however, were merely the most spectacular iteration of long-standing conflicts over transformations in animal husbandry between the Munster Plantation in the 1580s and the rebellion of the 1640s. The new pastoralism that emerged during these decades threatened traditional practices and landscapes while creating new vulnerabilities to poor weather and economic downturns. The combination of economic crises and harsh weather associated with the Little Ice Age exposed these vulnerabilities. The cow trials show that environmental forces shaped the 1641 Rebellion but demonstrate that historians assessing the impacts of climate and weather must attend to the social and economic contexts that produce vulnerability.

The Ecocentrists

U.S. Intellectual History Blog just finished a very interesting roundtable, organized by Anthony Chaney, on Keith Makoto Woodhouse's The Ecocentrists: A History of Radical Environmentalism (Columbia UP, 2018), the 2019 winner of the Society for US Intellectual History’s award for best book of intellectual history. The roundtable includes insightful essays by Roy Scranton, Natasha Zaretsky, Paul Murphy, and Daniel Wayne Rinn, as well as a response by Woodhouse.

An excerpt from Zaretsky's piece demonstrates the relevance of the series to legal and environmental historians and practitioners alike:

[The] fantasy of a world emptied of people casts humans as an invasive species and the non-human world as bouncing back once we have exited the scene. In The Ecocentrists, Keith Makoto Woodhouse terms this thinking “holism”—a tendency to portray human civilization as comprised of an undifferentiated mass of people bearing down on a planet with finite resources and capacities. This proclivity toward holism was at the heart of radical environmentalism, where it played a paradoxical role. On the one hand, it gave the movement its teeth and empowered activists to reject the incrementalism of mainstream environmental organizations and engage in direct action, often at personal risk. On the other hand, at its worst, holism could shade into misanthropy, a blindness to social and economic inequality, and even anti-immigrant nativism.

Woodhouse is keenly aware of this paradox, and the portrait of radical environmentalists that emerges are nuanced. This book neither pathologizes nor romanticizes radical environmental activists. Much of the book centers on the story of Earth First!, and at one point, Woodhouse stresses that Earth First!ers saw themselves as part of a movement rather than an organization. It is worth taking a moment to reflect on the depth of that distinction. Earth First! was founded in April 1980 at the start of a decade when the radical energies of many social movements of the 1960s and 1970s would be routed into a dense and well-funded liberal apparatus comprised of non-profit organizations, think tanks, and lobbying groups that sought to reform the system from the inside. Modern environmentalism was particularly vulnerable to this kind of institutional capture because of its reliance on litigation strategies. But Earth First!ers were “movement” people. To be a movement person is to set oneself apart from the dominant society, to feel swept up by the forces of historical change, and to place political commitment at the center of your everyday life in ways that people outside the movement often find baffling and inexplicable. These tendencies arguably ran even deeper for radical environmentalists, who were motivated by a sense of urgency predicated on the prediction that the planet was running out of time. The Earth First! slogan—“no compromise for Mother Earth”—captured the movement’s single-minded drive.

But that single-mindedness also created contradictions that dog radical environmentalism to this day. The portrait of an existential standoff between an imperiled earth and “human civilization” overlooked the histories of global capitalism, colonialism and imperialism, enslavement and coercive labor structures, the appropriation of indigenous lands, concentrations of wealth and resources in the global north, and widening social and economic inequality. When radical environmentalists simplistically argued that “people were the problem,” they failed to grapple with how these histories were entwined with assaults on land, air, and water. This critique of a “universal humanity” will be familiar to anyone who has followed the more recent debate about the Anthropocene, the geoscientific term used to mark the moment when human activity became traceable in the geological record. Scholars such as Jason Moore, Andreas Malm, and Donna Haraway reject the term “Anthropocene” for its universalizing tendencies, introducing instead clumsier but more precise designations such as the Capitalocene, the Chthulucene, and the Plantationocene. Woodhouse’s book reminds us that the current Anthropocene debate has deep historical roots. It has long proven difficult for radical environmentalists to simultaneously combat both the planetary threats posed by humans and the inequalities that exist among humans. (Radical environmentalists are not the only ones who struggle with this. Activists focused on human inequality have also tended to subordinate the non-human world, but that is a different–if not unrelated–story). 

The Nature State

The latest English Historical Review has a review by Karen Jones of The Nature State: Rethinking the History of Conservation, edited by Wilko Graf von Hardenberg, Matthew Kelly, Claudia Leal and Emily Wakild (Routledge, 2017). Jones writes:

Building on the work of David Blackbourn, James Scott, Adam Rome, Paul Sutter, and Frank Zelko, the present volume asks us to take a fresh look at the mechanics of power and governmental activity in matters of conservationist enquiry, taking in ideas about global networks, modernity, localism and the politics of negotiation. Implicit here are two concepts: firstly, a challenge to the idea of American hegemony in leading the world in conservation thinking and, secondly, a sense that in embarking on various kinds of environmental governance, state organs were able to propagate their influence and reach. Here the book reveals a foundational tension, arguing for the ‘irregular but near-universal character of the nature state’ (p. 9), while also pointing to the way in which different geographies, constituencies and structures created a site-specific patchwork polity marked by formal and informal demonstrations of authority.

*****

... the book is provocatively, but somewhat deceptively titled. In fact, in the story of environmental resources and political capital set out here across diverse geographies, we find not one state but many, sometimes redoubtable, sometimes hamstrung, and always complicated.

Italian forest commons

As summer bakes Jerusalem and flights are indefinitely suspended, thoughts of Italy's Cadore region, discussed in Giacomo Bonan's The State in the Forest: Contested Commons in the Nineteenth Century Venetian Alps (White Horse Press, 2019), are beguiling. (Bonan wrote an excellent paper, "Confronting Hardin: Trends and Approaches to the Commons in Historiography", for a collection I edited a couple of years ago.) ARO recently published a review by Richard Hölzl of the book; some excerpts:

At the center of Bonan’s book are the Alpine valleys of the Cadore, a region in the Eastern Italian Alps to the North of Venice and bordering on Alto Adige/South Tirol and Austria. The region came under the rule of the Serenissima of Venice in the early fifteenth century and remained so until its fall in 1797. After the brief but very important period of the Napoleonic Kingdom of Italy, it was part of the Habsburg Empire from 1815 to 1866, when the Veneto was annexed to the new Kingdom of Italy. Since the thirteenth century the families of the Cadore, constituted as the Community of the Cadore, organized the local forests and their exploitation as commons under a system known as regole. Regole initially meant regular decision-making at assemblies by the heads of the households of several Cadore villages, who also appointed officers to enforce regulations of communal life. With the increasing success of Venice as a maritime and commercial power, the forests of the Cadore became of importance to the Venetian economy, as they provided timber for shipbuilding and city extension. Timber entrepreneurs of the Cadore cooperated with Venetian merchants and established a vibrant business that also dominated the income and livelihoods of the local households of the Cadore. Timber trade provided decently paid labor for members of every household and subsidized food imports to the mountain valleys, which did not support much agriculture. It also resulted in considerable population growth before and after 1800. Moreover, it furthered the stratification of local society in wealthy timber entrepreneurs, established families who claimed access to and common ownership of forests, and a class of newcomers and landless without such benefits.

The Napoleonic Age brought fundamental changes to this system – changes, which lasted the better part of the nineteenth century and had the established families of the Cadore look back nostalgically on the seemingly good old times, when the regole system was intact and the timber trade supported communities and households well. The advent of modern forestry in the Napoleonic and Austrian period meant that regional and central administrative officers were tasked with supervising the felling process as well as introducing new cutting and conservation measures. The administrative elite in Venice adopted the new scholarship on forests which emerged out of France and Germany and attempted to implement it on Venetian territory.

The Cadore, however, is an interesting exception to the general trend to abolish and privatize the forest commons in the early nineteenth century. Rather than abolishing the commons, the successive administrations tried to modernize their administration by transferring the management from the regole and villages to larger municipalities and regional forest authorities, and by using the profits from the forest commons for road building and schools, rather than supplementing food import. 

Control of outdoor advertising

The Historical Journal recently published James Greenhalgh's "The Control of Outdoor Advertising, Amenity, and Urban Governance in Britain, 1893–1962". The abstract:

This article examines the control of outdoor advertising in Britain, tracking its development as a mirror of the practices of spatial governance. It evidences both a largely forgotten, yet radical change in the urban environment, whilst also functioning as a lens through which we might examine local government's role in driving change in the visual environment of cities and towns. The article argues that, despite important early work by preservationist organizations, local corporations and councils were the principal drivers of legislation, altering attitudes in central government that ultimately led to stringent control of outdoor advertising in urban space. Beginning in the nineteenth century, but coming to the fore during the interwar period, corporations and councils pushed for ever greater controls over the size and siting of billboards, hoardings, and posters. In doing so, they deployed a language of amenity, and conjured with seemingly social democratic notions of citizens’ rights to push their agenda. The study is thus revealing of the ways in which town planning, patterns of holistic control in the visual environment, and the philosophy of urban modernism shaped even the most mundane, extant urban areas and left a lasting impression on the urban landscape.

Historic Spanish conservation laws

The US Library of Congress's online Herencia collection, containing royal decrees, papal bulls, legal opinions, judgments, and royal orders from Spain from the 15th through the 19th centuries, has recently been running a crowdsourcing project to review transcriptions of the historic documents.

Two collections that might interest readers of this blog are the collections of laws and statutes on agriculture, conservation, hunting, and fishing, and that on disease and public health law.

Royal Order of December 12, 1748 concerning the conservation of forests and plantations (LOC)

The Cigarette: A Political History

The Cigarette: A Political History (Harvard UP, 2019) by Sarah Milov, co-founder of this blog, was recently reviewed by Reuel Schiller for Jotwell. Schiller writes that Milov's "narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state." Further excerpts:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.

First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.

Chinese environmental regulation in the 1970s and '80s

Pollution in China (credit: Anjali aisha)

Just appearing online in Environment and History is an artcile by Yun Liu, "Voices of Protest Against Industrial Pollution in Hubei, China, During the 1970s and 1980s". The abstract:

This article examines local official records to find voices of protest against industrial pollution in Hubei, China, during its early reform era from the 1970s to the 1980s. Archival evidence from unpublished official documents indicates that to some extent local officers responded to citizens’ petitions against two main forms of industrial pollution: air pollution and soil pollution. Air pollution mostly affected urban residents but elicited more contention. Soil pollution got comparatively less exposure but caused more direct damage to impacted peasants. Both rural and urban victims of industrial pollution projected their own voices of protest typically by submitting group-authored and signed or anonymous whistle-blowing letters. Protests against pollution emerged with inter-group conflict negotiation in public or semi-public venues as well as in local investigation reports. The findings discussed here help to explain how local environmental governance evolved through increasing public awareness at subnational levels in China’s early reform years.

The environment in Dan Ernst's legal history exam

Dan Ernst (Georgetown Law) regularly posts a long exam question from his legal history course at Legal History Blog. This year's question was on federal grazing policy in the US. Some excerpts:

One of the Forest Service’s first projects was to subject stockmen used to roaming the mountains at will to the principles of forestry.  To develop and defend the new regulations, Pinchot hired, as chief legal officer of the Forest Service, an able and imaginative lawyer, who was personally indebted to him for, among other things, lending him money in the past.  The chief legal officer, who reported directly to Pinchot rather that the more politically connected Solicitor of USDA, soon worked out an ingenious constitutional justification for criminal enforcement of the grazing regulation, turning in part on the claim that the use of the public domain was not a private right but merely a privilege.  In 1908, Pinchot’s lawyer convinced the Department of Justice to bring a test case against a sheepherder named Pierre Grimaud.  A federal district judge ruled that the prosecution violated the nondelegation doctrine.  On direct appeal to the U.S. Supreme Court, the justices at first deadlocked, 4-4.  Pinchot was unfazed.  “I hold it to be the first duty of the public officer to obey the law,” he explained, “but I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good.”  After Charles Evans Hughes and another justice joined the Court, Grimaud was reargued, and, in 1911, the Court upheld the prosecution.  The Forestry Service immediately brought scores of criminal prosecutions, and, by 1912, USDA could report that overgrazing in the forest reserves had ended.

*****

In 1934, the Colorado Cattleman’s Association sent [Farrington] Carpenter to Washington, DC, to lobby Congress to add beef cattle to the Agricultural Adjustment Act’s list of “basic agricultural commodities” and permit them to enter into marketing agreements controlling cattle prices.  Having succeeded, Carpenter stopped by his Congressman Taylor’s office to say his goodbyes, just as the grazing act was having a hearing.  Realizing that Carpenter would be an effective witness and learning that he did not think the public domain should be turned over to the states, Taylor asked him to testify.  (Carpenter was no fan of national power, but he believed that once the land was devolved to the states, different grazing interests would capture different state legislatures and produce an unworkable patchwork of regulation.)  Before the House committee, Carpenter spoke for small-scale cattle stockmen such as himself, plagued by nomadic sheep herds and pushed off public domain by larger cattle outfits.  Federal control was the small stockman’s only chance to avoid being “completely wiped out of existence,” he testified.

When, a few months later, [Secretary of the Interior] Ickes’s undersecretary offered Carpenter the directorship of the new Grazing Division created within the department to enforce the Taylor Grazing Act, Carpenter warned that sheep herders would object to his appointment because he was known as a champion of cattlemen in his corner of Colorado.  He claimed also to have said that he did not intend to create “a great centralized bureau” like the Forest Service, “run by Eastern people who know little about the public domain.”  After consulting a government official who once represented sheep herders, Ickes decided Carpenter would treat them fairly.  Whether Carpenter’s other warning registered with the Interior Secretary Ickes is not known. 

Video of the colloquium on the legal history of epidemics

This past Monday's colloquium on the legal history of epidemics went well, I thought. The speakers (Mario Ascheri, Tamara Morsel-Eisenberg, Noga Morag-Levine, Alex Chase-Levenson, Felice Batlan, and John Witt) were really interesting, and the questions from the audience led to some more interesting discussion.

The video of the event (with transcript) is available here.

Work on the bibliography of the legal history of epidemics is ongoing - please send me your suggestions for further sources.

Colloquium: Legal history of epidemics

(Update: Video of the colloquium here.)

Next Monday, 25 May, the David Berg Foundation Institute for Law and History at Tel Aviv University will host an online colloquium on the legal history of epidemics. 

The program:

Session 1 (15:00 GMT/11:00 EDT):

Mario Ascheri (Rome 3): Treatises on Plague Law in the Italian Renaissance

Tamara Morsel-Eisenberg (Harvard): Early Modern Jewish Legal Sources on Epidemics

Noga Morag-Levine (Michigan State): Pestilence and Governance in Early Modern England

Alex Chase-Levenson (Penn): Lazaretto Law in the Early Nineteenth-Century Mediterranean

Felice Batlan (Chicago-Kent): Rights, Quarantines, and Inequality in U.S. History

John Witt (Yale): American Contagions: A Short History of Law and Democracy in Crisis

Session 2 (16:15 GMT/12:15 EDT):

Roundtable discussion: Issues and challenges in the legal history of epidemics

Moderator: David Schorr (Tel Aviv)

To receive a link and password, please register by emailing the address in the image above.

(The Berg Institute's bibliography on the topic is here.)

The law of necessity

Ely Cathedral and the fens

A new article by John Collins in Past & Present, "The Long Parliament and the Law of Necessity in Seventeenth-Century England", highlights the importance of claims of necessity in the history of environmental law. As necessity is also one of the foundations of much of the law made around historical epidemics, the topic is particularly timely. An excerpt from the article (notes omitted):

Narratives of perpetual necessity aroused concern in the early seventeenth century. Sir Edward Coke, for example, was worried about the power that the commissioners of sewers possessed over property in the Case of the Isle of Ely of 1609. The famed jurist heard these arguments while he was chief justice of the common pleas, a position he had obtained in 1606. This case was just one of several involving the ambitious undertakers of the English fens who sought, through mechanical improvements, to obtain control over the flood waters that engulfed the low-lying regions around Ely, in order to create productive, and enclosed, farmland. Their pursuits put them squarely at odds with those who wanted to keep the fens as they were so they could continue to enjoy public rights in the marshlands, with inhabitants from surrounding regions who did not want to pay the taxes required for the building of the pumps and dykes, and sometimes with landholders who had parts of their property expropriated so that the dykes could be built.

Legal cases arose over the statutes that authorized the commissioners of sewers. As David Chan Smith has so carefully shown in his recent book on Edward Coke’s jurisprudence, conflicts arose over ‘how taxes should be assessed to pay for sewer works and whether the commissioners had the power to direct the creation of new works’. The particular background to the Ely case involved a group of projectors who, in 1605, were going to drain the fens around Ely and pay for it either through direct or indirect expropriation of lands. While the commissioners of sewers decreed the project legal, the 1607 parliament had refused to sanction it.

In a reversal of previous judgements friendly to the discretionary powers of the commissioners, Coke attempted to bind them through a restrictive definition of necessity. For Coke, the commissioners of sewers could not tax English subjects unless there was an ‘inevitable necessity’ that mandated the construction of dykes, walls or other technologies to defend the land against floodwaters. Innovation was not included in Coke’s narrative of necessity. He only allowed taxation or the expropriation of property for the repair of pre-existing dykes or walls. For Coke, it was only for the sake of a structure that defended the English countryside against inevitable danger — a danger that was not presently visible but would assuredly manifest itself in the future, as the English knew from flood patterns and ocean forces through hundreds of years of experience — that the commissioners of sewers could transform the property of English subjects to achieve the preservation of the commonwealth. If any type of actual innovation was going to be made, the houses of parliament needed to approve it.

In many ways, Coke was an exceptional figure within the English legal community, as those judges who ruled before him on the various statutes of sewers and those who read after him, most notably Robert Callis, did not agree with his restrictive understanding of necessity. For Callis, who gave a reading on Henry VIII’s statute on sewers in 1622 at Gray’s Inn, Coke’s ruling did not fully appreciate the equity embedded in the powers given to the commissioners of sewers. Because their work was of such a ‘great and urgent necessity and use for the good of the whole Commonwealth of the Realm’, the intent ‘maybe extended in exposition beyond the letter of the words’. An equitable reading of the statute allowed judges to ‘inlarge the letter of the Law in the sence of construction, because it tends so much to the advancement of the Commonwealth’. For Callis (who in all likelihood stood to gain from the drainage projects), the soul of the law allowed for new projects even while its strict wording did not. Callis’s reading, at least in 1622, was the legal victor. Stuart lawyers in general allowed a relatively wide latitude when it came to the application of the law of necessity. Utility and improvement, as well as preservation, fitted into their narrative of necessity, which in turn provided those empowered to utilize such narratives a broad remit to generate novel positive laws.

Levelling the Lake

Thank you to everyone who's assisted in putting together the list of sources on the legal history of epidemics; this is an ongoing project so please do send me any ideas for sources.

I'm also going to try catching up on the big backlog of posts I haven't had time to do, beginning with today's notice of Daniel Macfarlane's review for the Canadian Historical Review of Jamie Benidickson's new book, Levelling the Lake: Transboundary Resource Management in the Lake of the Woods Watershed (UBC Press, 2019). Macfarlane writes that the book

is a deep dive into a complex area defined by borders (both hydrological and political). Surveying the last half of the nineteenth century to the present, Benidickson unravels this complicated story of resource management in the Rainy-Lake of the Woods area, which spreads across northwestern Ontario, southeastern Manitoba, and northern Minnesota (including the border jog referred to as the Northwest Angle).

One of Canada's leading environmental law scholars, Benidickson has made a career of writing about Ontario's water. Part of UBC Press's Nature/History/ Society series, this book can be characterized as environmental, legal, policy, and institutional history. The central focus of Levelling the Lake is the history of environmental governance, chiefly on the Canadian, and Ontario, side of this watershed. The narrative moves back and forth between different places and scales: Kenora and Fort Frances, Queen's Park and federal Cabinet meetings, corporate boardrooms, and International Joint Commission (IJC) deliberations. This inquiry required research in multiple archives as well as the use of printed primary sources such as court cases and IJC reports. Benidickson manages to delineate the overlapping jurisdictions and policies while simultaneously weaving together various sectors that are often ignored or compartmentalized by authors attempting research projects at similar scales: hydropower, water levels, pollution, fisheries, mining, recreation, forestry, pulp and paper, and so on.

*****

Levelling the Lake painstakingly peels back the various layers and imprints that make up the palimpsest of overlapping and contested boundaries in this region. Benidickson is an ideal interlocutor, teasing out the strings of intertwined claims and histories in ways that shed light on modern resource disputes. To make the necessary legalese more accessible, the author effectively employs metaphors and analogies, such as using the game of musical chairs to simplify the muddled process of acquiring water-power sites in the region (63). Characterizing jurisdictional and border issues as "polycentric," the author does not get bogged down in theory or concepts. Thus, this book will appeal to an interested general audience as well as to environmental and resource scholars in a variety of academic disciplines spanning the social sciences and humanities; at the same time it is a must-read for historians of northern Ontario. 

Sources on the legal history of epidemics

I've been busy with other things for a while and haven't had a chance to post, but I've just put up the first draft of a list of sources on the legal history of epidemics.

Please pass it on to anyone who might be interested, and please email me with any sources or suggestions!

Wishing everyone good health,

David

Title page of Girolamo Previdelli, De Peste et ejus privilegiis (Bologna, 1528)
(courtesy of Bayerische StaatsBibliothek)