LA's water and history

Richard Frank recently posted at Legal Planet on "The Latest Chapter in Los Angeles’ Century-Long Water War With the Eastern Sierra’s People & Environment". Frank begins:

There LADWP goes again.

Recently the Los Angeles Department of Water and Power announced it was walking away from its longstanding obligation to provide Mono County residents and the environment with a tiny fraction of the water it transports from Mono County to LADWP’s urban customers in Los Angeles.  When efforts by county officials to resolve the dispute informally with LADWP failed, the County sued, arguing that LADWP’s unilateral action violates California’s most iconic environmental law, the California Environmental Quality Act (CEQA).  Earlier this year, a trial court agreed, ruling in the County’s favor.  The court found that LADWP’s decision to turn off the Mono County spigot without prior environmental review violates CEQA.  Now LADWP has chosen to appeal this adverse ruling to the California appellate court—where it is likely to lose again.

If LADWP’s action were an isolated incident, observers might well conclude that this is simply the latest chapter in California’s seemingly interminable water wars.  But it’s not.  To the contrary, LADWP has a sorry, 120-year history of treating the rural people and natural resources of the Eastern Sierra as a population to be exploited and an ecosystem to ravage.  Fortunately, the courts, state officials and environmental advocates have in the past repeatedly intervened to halt or moderate LADWP’s economic and environmental depredations.  Unfortunately, they need to do so again in order to stop LADWP’s announced water cutoff.

There's lots more legal history in this interesting and timely post.

Weir Pond, Eastern Sierras

Environmental law in Rome and beyond

For the Italian speakers among you (courtesy of the ESCLH blog): The Laboratory of Legal and Economic History at Università degli Studi "Magna Graecia" in Catanzaro will be holding a conference on "The environment between law and economics: a long journey from the Roman world to the contemporary age" on 3-4 December 2021. The program and links for remote participation are below and on the website Storia del diritto medievale e moderno.

The various reasons for killing wolves

Pieter Serwouters, Wolf hunting (1642)

The journal Environment and History just posted an article by Kristiaan Dillen, "The Various Reasons for Killing Wolves in the Fifteenth-Century Liberty of Bruges". The abstract:

In the fifteenth-century Liberty of Bruges, a rural castellany in the county of Flanders, a bounty system was established to promote the elimination of wolves. Prize money made the wolf not only an unwanted but also an actively tracked animal, a combination that resulted in its wholescale slaughter. Researchers who have previously examined these bounties believed that they were primarily part of a system of pest control. They did not realise, however, that the inhabitants who came forward to claim the bounty killed wolves not to clear the Liberty of Bruges of vermin but for entirely different reasons, which depended on the context in which encounters with wolves occurred. In this text, I use the records concerning the bounty system established by the Liberty of Bruges to understand the complex relationships between humans and wolves in this fifteenth-century castellany. I first introduce the long series of records; thereafter, I attempt to identify reasons for killing wolves in the Liberty of Bruges and the contexts in which such killings occurred.

And from the conclusion:

Was the establishment of the bounty system indeed a sign that the wolf was not wanted? Judging from the long series of data from the accounts of the Liberty of Bruges, we can conclude that killing a wolf often also meant the opposite, as doing so signalled noble status and provided additional income. Thus, it is not entirely correct to regard the slaughter of wolves merely as a form of pest control or, as it is referred to today, a type of ‘management hunt’. Wolves were unwanted but ostensibly respected. In contrast to the attitudes towards other animals, such as crows or pigs, which were kept out of fields or cities by means of a system of fines, not bounties, people’s behaviour towards wolves was not regulated and corrected.

Water as a common good

The indefatigable Patrick O'Donnell recently posted "Water as a Natural Resource, Common Good, and Commodity: A Basic Bibliography". This bibliography is one of many on topics of interest to readers of this blog, such as his bibliography on "Red and Green". 

Heinzerling on Lazarus

Sorry for the long silence - I hope I'll have some more time now to catch up on the blog.

Last spring Lisa Heinzerling published a review in the Michigan Law Review of Richard Lazarus's The Rule of Five: Making Climate History at the Supreme Court (Harvard UP, 2020). Heinzerling writes:

Let me start by saying that whoever chose the novelist Scott Turow as the lead blurbist for the book jacket nailed it. The book is crowded with ambitious lawyers, wise judges, tangled law, and stately courtrooms. There is a just cause and a triumphant outcome. There are heroes and antiheroes, with these judgments disguised but not hidden by Lazarus’s facially neutral thirdperson narrative. To top it all off, a courtroom scene serves as the dramatic climax. The book is, against all odds, a legal thriller.

All this novelistic drama, however, comes with costs. The costs are a deficit in critical judgment and a surfeit of gender traditionalism. The deficit in critical judgment manifests in Lazarus’s unalloyed reverence for the Supreme Court and apparent resistance to critiquing its work. This reverence is most vividly on display in the book’s descriptions of the Supreme Court building and its contents. The entire building becomes, in Lazarus’s narrative, a kind of reliquary: every object the justices touch, from pewter mugs to leather chairs to spittoons, takes on some larger and quasi-sacred meaning. The politics that otherwise stalk the city in which the Court sits do not, we are made to infer, darken the doors of this special building. And a frank acknowledgement of the gendered character of the men’s-club atmosphere of the Court is lost in Lazarus’s romanticizing.

*****

The book’s deficit in critical judgment, now paired with unspoken gender traditionalism, also surfaces in its treatment of the human dramas of Massachusetts v EPA. Lazarus’s account is blind to the subtle gender dynamics of the case and, most troublingly, to his own reenactment of them. Lazarus selects as his cast of characters “five guys,” as he calls them, and “a gal,” as he calls me. His account of the five guys’ roles in the case uncritically accepts their version of events and then distorts it by fixating on and amplifying the conflicts that arose during this high-stakes litigation. In Lazarus’s rendering, the contributions and sacrifices of the female lawyers, including my own, recede to make room for the men.

There's lots more here - worth reading. 

Roman roots of modern approaches to water law

Ella Hermon recently posted "Perspectives on the history of water management: ancient roots of modern approaches". It's a very short piece but filled with references to her publications in French on Roman law issues such as flooding, integrated management, riparian ecosystems, and more, for instance her article "La culture juridique romaine de gestion résiliente du risque d’inondation", published in Index in 2020.

Ecological consequences of Spanish colonialism

Last year's The Americas published an article by Christopher Woolley, "'The Forests Cannot be Commons': Spanish Law, Environmental Change, and New Spain's Council on Forests". The abstract:

This article examines the sylvan political ecology of late colonial New Spain and the colonial government's attempt to address deforestation through the Council on Forests, the first body in the kingdom's history dedicated to the conservation of natural resources. Drawing primarily from the corpus of documents produced by and remitted to the council, this article gives a trans-regional perspective on colonial forest use and argues that the Spanish crown's usurpation of indigenous communities' eminent domain over forests was the first step in a process that over centuries progressively severed the cultural ties that bound communities and forests by converting common-pool resources into open-access commons. The catastrophic mortality of the Spanish invasion was the second step, which rendered conservation measures seemingly unnecessary among both woodcutters and officials. But it was during the eighteenth century that older Habsburg notions of protectionism intersected with economic and political changes associated with Bourbon rule to further compel this cultural severance. While previous works have studied the ecological impacts of mining, ranching, and flood control, this article moves beyond the study of a single industry to suggest some of the larger ecological consequences of Spanish colonialism.

Forest in the Sierra Juarez, Oaxaca, Mexico (credit: Prsjl)

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)

Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here. 

Sustainability and the history of knowledge

The Journal for the History of Knowledge recently published an article by Sebastian Felten, "Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines". The abstract:

A late-eighteenth-century encounter between Dutch merchants and cameralist Saxon officials is used to argue two related points. First, the history of knowledge can help us rethink hierarchical power structures like the Saxon mining bureaucracy. Mine owners had a right to information and could not be forced to pay contributions, which meant that mining officials were solicitous in sharing knowledge, fretted about investors’ favor, and took their desire for revenue into consideration. These observations directly challenge the traditional absolutist image of the Saxon mining bureaucracy. Second, the history of knowledge can help explain how certain rationalities (that is, combinations of means, ends, and values) came into being. Saxon officials sought to situate short-term income and expense in a success story that spanned decades and centuries. Informed by the concept of Nachhalt (sustainability), Saxon officials saw profit even in mines that lost money. This kind of sustainability thinking is best explained via the archival practices of the mining bureaucracy: officials collected information from yield sheets and local lore in order to calculate long-term outputs, to speculate about untapped deposits, and to disburse as little profit as possible. When the Dutch eventually understood this rationality, they withdrew. Saxony’s early modern mining bureaucracy was dismantled by liberal reforms in 1850s, but its peculiar brand of sustainability, aiming to extract resources at almost all costs, likely survived the dawn of industrial capitalism as young engineers and administrators became versed in it at the Freiberg Mining Academy.

For a different take on the origins of German sustainability thought, see Peter Sand's post here. 

Star vaulting on the ground floor of the Saxon Mining Office, Freiberg
(photo: Norbert Kaiser)

The inevitable empire of nature?

The new journal LawArt. Rivista di Diritto, Arte, Storia / Journal of Law, Art and History just posted its first issue (as an aside, we've now counted 63 active legal history journals!), including an article by Nader Hakim, the English title of which is "A Legal Picture of Nature: Legal Discourse or the Aesthetics of Truth. An Example from the Heart of 19th Century France" (the article is in French). The crux of the article (with help from Google Translate, notes omitted):

Sculpture of Charles Demolombe,
Caen, c. 1910

Charles Demolombe (1804-1887), famous professor of civil law in Caen, Normandy, lets us see a picture in which nature holds a place that is significant and quite symptomatic of the legal discourse of his time. From the outset, in fact, the reader encounters nature very frequently when reading the famous Cours de Code Napoléon. Nature seems made up of "all that exists, not only the objects which can become the property of man, but even all that, in nature, escapes this exclusive appropriation." Nature is thus opposed to human activity, it forms the backdrop for actions or the landscape within which law is played out.

However, far from being an objective reference to the physical-chemical world alone, nature is mobilized to integrate into the discourse not only biological life or physical forces but also essences and values. It is then natural what the author, in this case Charles Demolombe in our example, declares as such. One might think that nature is this thing external to the human will and which is imposed on everyone, objectively, but it is not.

Of course, we meet this mysterious and irresistible force, this force majeure considered an "inevitable empire"* of nature. Of course, tangible or immovable property or even men and women have undeniable physical properties. Things and people, the objects of the jurist's discourse, indeed exist. In reality, we can easily see that the law and jurists choose from what is objectively “natural” or physical-chemical, that which they will qualify as “nature”. In a way, the law has the last word because it chooses among the constraints of nature those that it wants to admit and if necessary extend, and those that it simply ignores.

* In a note here Hakim cites from Demolombe (vol. X, no. 5) a passage on the law of alluvion that resonates with a recent paper of mine (for a collection edited by Hakim on "Nature as a Norm"...):

As if the rivers and rivers needed the permission of the legislator, to roll their waters according to the mysterious and irresistible movements which carry them along! As if this empire, or as we still say, this absolutism of running waters were not the work of nature itself, an inevitable empire, of which the legislator would seek in vain to dispossess them; whereas its only claim can be to regulate the consequences as equitably as possible. We must therefore recognize that there is a force majeure here, a force often capricious and undoubtedly blind, regarding which the laws cannot always right the wrongs or repair the injustices.

The U.S.–Japan dispute over the whaling moratorium

A recent issue of Diplomatic History published an article by Masaru Nishikawa, "The Origin of the U.S.–Japan Dispute over the Whaling Moratorium". The article begins (footnotes omitted):

On December 26, 2018, the administration of Japanese Prime Minister Shinzo Abe announced it would end its participation in the International Whaling Commission (IWC). While Japanese national parliamentarians who belonged to the pro-whaling caucus welcomed the decision to resume commercial whaling, the decision faced condemnation. For example, the New York Times noted that Japanese authorities ought to reconsider the decision as “[w]ithdrawing from the whaling commission for short-term political gain is a dangerous and foolish move, especially for an advanced country like Japan that has generally supported multilateral efforts on the environment.” Kumao Kaneko, a retired Japanese diplomat who had dealt with the whaling issue as a delegate to the United Nations Conference on the Human Environment (UNCHE) in 1972, regarded the decision with displeasure: “Japan has not learned anything from the shock it experienced at the UNCHE, which I still cannot forget.”

*****

The conference... marked a crucial dividing point in the history of whaling. At the UNCHE, Recommendation 86 was proposed by the secretariat. Recommendation 86 called for all involved governments to strengthen the IWC, to increase international research efforts on whales, and an international agreement under the auspices of the IWC for a 10-year moratorium on commercial whaling. The United States, much to the consternation of Japan, would play a key role in moving Recommendation 86 forward.

Before 1970, whaling moratoria were not a matter of legal or legislative concern for the U.S. government. However, the Nixon administration “initiated and strongly supported” Recommendation 86 against vigorous opposition by whaling nations in 1972. Since then, the United States pursued a whaling moratorium, which aimed to encourage the remaining whaling nations—Norway, Iceland, the Soviet Union, and Japan—to outlaw commercial whaling.

Several policy scholars have argued that nascent environmental NGOs made the campaign against whaling a powerful symbol of modern environmentalism. Those scholars have further argued that the rise of an environmentalist consciousness among the American electorate in general, and the lobbying efforts of environmental NGOs in particular, produced the Nixon administration’s sudden strong support for the 1972 anti-whaling agenda. As the scholar Kurkpatrick Dorsey wrote, “Save the Whales!” became the rallying cry for environmentalists around the world. According to environmentalist rhetoric, whales were essentially humans, only perhaps slightly better. The Nixon administration, these environmental policy scholars argue, came to co-opt this powerful message.

Japanese journalists and pundits see things quite differently. They argue that the Nixon administration changed its policy for a very different reason: they point to a “conspiracy.” For instance, in a book titled (in translation) Whaling and Conspiracy, Yoshito Umezaki insists that Nixon’s dramatic turn toward the moratorium was in fact merely an effort to misdirect attention away from the United States’ own environmental sins—in particular its massive use of defoliants in Vietnam. Umezaki claims that the moratorium was a kind of cover-up that would serve to both keep the international community from pointing a finger at the United States, and its voters from recognizing Nixon’s environmental faults, thus helping Nixon to gain re-election in 1972. Umezaki concludes that Japan was used as a “scapegoat” by the Nixon administration. Japanese government officials, such as Kazuo Shima, an IWC commissioner from Japan, and others also support the conspiracy theory argument. Shima described the U.S. environmental groups as an “ecological cult” and the UNCHE as a well-planned form of “international bullying” of Japan. Shima believed that the United States was motivated by enmity and wariness against Japan when it proposed a moratorium. More directly, Shima argues that the moratorium led by the United States was simply another aspect of its campaign to attack Japan’s growing economic power. However, this author regards the conspiracy theory as basically untenable, as it contains many insufficiently substantiated claims.

Credit: Jeremy Sutton Hibbert

The polluter pays principle and policy transfer

I missed this one a while back: The European Review of History published Jan-Henrik Meyer's "Who should pay for pollution? The OECD, the European Communities and the emergence of environmental policy in the early 1970s". The abstract:

Environmental policy emerged as a new European and global policy field within a very brief period of time during the early 1970s. Notably in Europe, international organizations played a central role in defining core principles for this new policy domain. This article argues that inter-organizational connections were crucial in this context: the exchange and transfer of policy ideas facilitated the rise of environmental policy across different international organizations. Focusing on the co-evolution of the polluter-pays principle enshrined almost simultaneously both at the OECD and the European Communities, the article assesses the multiple routes along which policy ideas travelled, the role inter-organizational competition played and the selective nature of transfers. While expertise played a key role in determining which policy concepts were selected, institutional conditions and the politics of the recipient institution determined how they were adapted to the respective new context.

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.

*****

Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.

*****

Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.

Economic theory and climate policy

A recent issue of Nature Climate Change carried an article by Jonas Meckling & Bentley B. Allan, "The evolution of ideas in global climate policy". The abstract:

From carbon pricing to green industrial policy, economic ideas have shaped climate policy. Drawing on a new dataset of policy reports, we show how economic ideas influenced climate policy advice by major international organizations, including the Organisation for Economic Cooperation and Development and the World Bank, from 1990 to 2017. In the 1990s, the neoclassical notion of weak complementarity between environmental protection and growth dominated debates on sustainable development. In the mid-2000s, economic thought on the environment diversified, as the idea of strong complementarity between environmental protection and growth emerged in the green growth discourse. Adaptations of Schumpeterian and Keynesian economics identified investment in energy innovation and infrastructure as drivers of growth. We thus identify a major transformation from a neoclassical paradigm to a diversified policy discourse, suggesting that climate policy has entered a postparadigmatic period. The diversification of ideas broadened policy advice from market-based policy to green industrial policy, including deployment subsidies and regulation.

The number of times neoclassical, Keynesian/Schumpeterian or limits-to-growth arguments appeared in our sample of IO annual reports each year from 1990 to 2017 (from the article)

The conservation constitution

A recent issue of Perspectives on Politics has a review by Richard Andrews of Kimberly K. Smith's The Conservation Constitution: The Conservation Movement and Constitutional Change, 1870–1930 (University Press of Kansas, 2020). Andrews writes that while existing works on the history of US conservation policy "focus on the policies expressed in statutes and regulations and on the actions of the administrative agencies, with only limited mention of the legal and constitutional arguments that were battled out in the courts", Smith's book "provides a valuable new complement to these studies by presenting a far more detailed history of the legal and constitutional arguments presented to and ultimately decided by the courts during the period from 1870 to 1930". Andrews continues:

Smith’s primary aim, well summarized in the final chapter (pp. 254ff.), is “to explain how lawyers and judges reworked constitutional doctrine to accommodate the expansion of state power over the natural environment during the Progressive era; and more specifically, how legal decisionmakers conceptualized the natural environment, its relation to human society, and the public interests at stake to create the constitutional ‘common sense’ that federal and state governments have authority to protect natural resources and the integrity of ecosystems in the interest of future generations.” In the process, she discusses the interweaving of principles such as the public trust doctrine, the police power, public nuisance doctrine, parens patriae standing, the interstate compacts clause, and federal constitutional arguments based on the interstate and foreign commerce, property, war, treaty, spending, and eminent domain powers, as well as the interstate nuisance doctrine. She argues that even though many of these issues continue to be argued in the modern era, the sheer number of these constitutional foundations, once accepted by the courts, has ultimately made governmental environmental management authority strongly resilient to challenges. She also urges greater recognition of the roles of skilled lawyers and judges, along with the better-known politicians and citizen advocates, in achieving this stronger role for the state in environmental conservation. Finally, she notes the continuing need for further evolution of our understanding of the Constitution: the Progressive understanding did not address the distributive imperfections of environmental regulation, nor the implications of administrative processes for procedural justice, nor—perhaps most problematic today—the absence of effective capacity for national economic and environmental planning, particularly in international cooperation to address global environmental challenges such as climate change. 

 After some minor criticisms, Andrews adds: 

Modernisation in English nuisance law

I somehow missed this one from Ben Pontin: "A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’". published in Legal Studies in 2018. The abstract:

The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

For the uninitiated (like me), Pontin explains in the article (I've removed footnotes and added links):

The idea under consideration of a mismatch between formal law and academic exposition opens onto well-charted territory. David Sugarman made an important contribution to this with his critique of the ‘English textbook tradition’. Sugarman's thesis is that Victorian and Edwardian-era legal scholars, exemplified by Professor Frederick Pollock, wrote textbooks that emphasised the permanence of common law principles, downplaying their changeability. They did so in order to counter a negative impression of the common law as chaotic and unpredictable, and thereby unworthy of a university education. The crucial part of Sugarman's analysis for present purposes is that textbook understandings of the common law are ‘not reducible’ to the law itself. Against this, William Twining has suggested that formative legal scholars were attuned to the common law's spontaneity, and that Pollock was in fact in the vanguard of a proto-realist understanding of ‘living law’. In defence of Sugarman, I argue that Pollock and other scholars writing about nuisance overlooked the modernity of contemporary case law. 

Sir Frederick Pollock, 3rd Bt (by Lafayette)

EIS in Antarctica

USA's McMurdo Station, Antarctica (USAP)

A recent issue of the Journal of Historical Geography had an article by Alessandro Antonello and Adrian Howkins, "The rise of technocratic environmentalism: the United States, Antarctica, and the globalisation of the environmental impact statement". The abstract:

Environmental impact statements (EISs), and the related environmental impact assessments (EIAs) which precede them, have become central elements of environmental management, governance, and policy worldwide since their introduction in the United States in 1970. Assessing environmental impact has a particular force and centrality within modern Antarctic environmental management and governance too. This article investigates the ways in which the United States used EISs and EIAs in Antarctica between 1970 and 1982 – during their first decade of existence in US law and during a geopolitically and scientifically vibrant decade in Antarctic affairs – as a way of illuminating the broader conceptual and historical aspects of this central, though understudied, environmental governance tool and framework. We historicise and draw attention to the EIS – individually, as a regulatory genre, and as a genre that articulates regional, global and planetary environments – as highly influential and powerful documents demanding attention from environmental historians and historical geographers. We argue that the prominence of EISs in Antarctica arose because they appealed to top-down, process-oriented approaches favoured in Antarctic governance – a technocratic environmentalism – and because of their spatial elements, particularly their tendency to upscaling.

The ecology of economic thought

I've been participating in a great online series on the historical intersections of economic and environmental thought, organized by Troy Vettese and Julia Nordblad. The organizers write:

One would think that environmental history and economic history would be peas in a pod. After all, central questions in the history of economic thought concern environmental issues such as the early-modern enclosures and the importance of water-power and coal to the industrial revolution. The meanings of ‘the environmental’ and ‘the economic’ have shifted over the centuries, especially as issues were traded between natural philosophy, political economy, and ecology. While much has been written on policy of various kinds, what this workshop is focused on are works that lie at the convergence of environmental, economic, and intellectual history. What  for example are the origins and contexts of Spaceship Earth, catastrophe bonds, geo-engineering, externalities, cap-and-trade, and sustainability? 

Many of the papers are on topics with significant legal aspects, such as the history of economic thought on emissions trading, Pigouvian taxes, and the like. Stephen Gross's paper for tomorrow is particularly laden with connections to the history of environmental law and regulation.

The schedule for the remaining meetings is below. Registration is for each session separately (links below), and the discussions assume pre-reading of the papers, as the authors do not present them but only respond to comments. Papers are available from Troy Vetesse.

Environmental dispute resolution 4,500 years ago

Fragment of the Stele of the Vultures, c. 2450 BCE

The latest Yearbook of International Environmental Law has an interesting contribution by Peter Sand, "Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash v Umma". Sand begins:

Legal historians sometimes contend—albeit tongue-in-cheek—that ‘environmental law has no history’ or that the origins of international treaty law in this field, at any rate, hardly date back more than two centuries. It is true of course that the very term ‘environmental law’ etymologically did not come into use, in any language, until the mid-twentieth century. Yet it is equally true that the earth’s natural resources have been a subject of claims for human exploitation and societal management (including law) for millennia before, as this brief note will aim to illustrate.

(The first quote is from my own chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Let me note that I meant this contention not tongue-in-cheek but in the sense more felicitously captured by Éric Naim-Gesbert, cited by Sand: environmental law has a past without a history. See the abstract of my chapter.)

Sand continues (footnotes omitted):

The Musée du Louvre in Paris and the British Museum in London hold tangible evidence of the world’s first known legal agreement on boundary water resources—that is, the Mesilim Treaty, which was concluded in approximately 2550 BC between the two Mesopotamian states of Lagash and Umma—‘the oldest international treaty of which there is a reliable record.’ The terms of the treaty have been preserved in cuneiform inscriptions on limestone cones and a ‘stele’ commemorating Lagash’s victorious battle enforcing the interstate agreement....

Mesilim (or Me-salim, born circa 2600 BC) was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonial’ position in the loose alliance of small neighbouring Sumerian states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon. In that capacity, he served as arbiter in a protracted dispute between the two city states of Lagash and Umma, and it is the text of the arbitral award attributed to him, accepted under oaths by the litigants to their respective deities, that then appears as Mesilim’s rules in the cuneiform inscriptions preserved. The main subject of the award was the inter-state boundary between the two states, alongside a major irrigation canal.... The dispute concerned both water resources (with Umma upstream and Lagash downstream) and a strip of adjoining agricultural land in the fertile Guedin valley... that was cultivated by Umma under lease from Lagash for barley production.

Sand goes on to describe the breakdown of the treaty and compare it to the modern Lake Lanoux Arbitration and ensuing agreements. More on this in an earlier guest post by Sand here.

Some foundations of modern British environmental law

The recent issue of the Journal of Environmental Law has a review by Stephen Tromans of Richard Macrory's Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart, 2020). An excerpt:

In a series of Chapters, Macrory looks at the development of the profession of environmental law: the ‘early sparks’ of environmental law as an academic discipline; practising environmental law as a barrister; and the ‘coming of age’ of academic environmental law. Here of course, the author is on strong ground, having been at the heart of the development of environmental law as an academic discipline since its inception. He has also had some, though very limited, experience of advocacy at the environmental Bar.

Chapter 3 deals with ‘the emergence of environmental lawyers’ in the UK, covering forerunners such as Professor Jack Garner, the Lawyers’ Ecology Group founded in 1972, and the inception of the UK Environmental Law Association (UKELA) in 1986. Having been involved in that process, it is always interesting to read about it, though how interesting generally to later practitioners may be questionable. The key point made is the undoubted development of environmental law ‘as a distinct and vibrant field’—the growth of UKELA reflecting that development. Macrory concludes that ‘the notion of both environmental law and environmental lawyers seems now to be fully embedded in our legal system.’ As in other areas, the possible weakness of the analysis maybe derive from the quite narrow focus of the author’s own personal journey, which does not really provide a full account of why and how environmental law came to achieve that position. In particular, a fuller analysis might have revealed quite a complex synergy between different areas of the law and different types of lawyers.

The strength of an organisation like UKELA has always been that it has drawn together lawyers from private practice, both as barristers and solicitors, lawyers working in house with industry, increasingly—and to be welcomed—lawyers working for environmental NGOs, lawyers within central and local government and agencies, as well as academics (and as Macrory points out, also many members from non-legal professions). The teaching and research in environmental law burgeoned in the late 1980s and 1990s, with many noted academics not mentioned in Macrory’s book—for example, Brian Jones and Michael Bowman working with Professor Garner in Nottingham; the engaging David Hughes at Leicester, who wrote one of the first student texts on the topic; the late Simon Ball at Sheffield, who wrote the other, later joined as co-author by Stuart Bell; Lakshman Guruswamy at Durham; Lynda Warren at Aberystwyth; and others. However, a relatively small cadre of academic lawyers would not have sustained the subject. What was also instrumental in the development of environmental law was that it became possible for people who had studied it to go on and get a job in that field and have the opportunity of making it their career. This occurred in the early 1990s because the major solicitors’ firms, and their clients, particularly US companies, began to regard environmental law as a necessary and even desirable practice area. New legislation such as the Environmental Protection Act 1990, and new EU Directives being transposed into UK law, meant that there was a need for advice on compliance. Perhaps even more important, from a commercial perspective, was the recognition of environmental risk—particularly the risk of liability for historically contaminated land—in transactions. These included loans, with very considerable interest and concern by the mainstream banking industry in such risks. The result was rapid growth in environmental departments in established London firms and the appointment of environmental lawyers as partners to head them, in some cases being appointed from an academic background. This provided strong support for the development of environmental law and the incubation of a future community of environmental lawyers and is a strong factor in it becoming an established practice area.

The origins of American environmentalism

The upcoming issue of Environment and History has an interesting, extended review by Thomas Le Roux (translated from the original French review in Le mouvement social) of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018). According to the review, the book does not try to downplay the importance of Rachel Carson's Silent Spring, but rather to point out the rich history of environmentalism (and environmental regulation) long predating Carson's work, with sources in labor, public health, social justice, and other movements. An excerpt:

In the second half of the nineteenth century... local municipalities were pressed to provide public health services or access to drinking water. The fight against pollution was one of the main issues of the urbanising nineteenth century, and this is the subject of the second chapter, which exposes different types of action to protect urban environments between 1870 and 1945. In particular, women, industrial workers and racial minorities began to claim environmental justice. As unions organised, and within the context of a wider social movement during this period, the working and lower classes managed to have their voices heard in order to improve their living conditions in an insalubrious urban environment. Often pressured by radicals, socialists and reformers, a number of communities took action to address local injustices. For example, between 1897 and 1904, under the directives of the radical Mayor Jones, Toledo, Ohio inaugurated a municipal service for garbage collection, as did Milwaukee, Wisconsin, which was led by a socialist-leaning mayor after 1898. It is particularly interesting that environmental activists also found themselves fighting for better industrial hygiene to protect the health of factory workers. It is in this milieu that the socialist John R. Commons, who established several health and safety measures in Milwaukee, participated in creating the American Association for Labor Legislation. His work, alongside that of Professor Alice Hamilton, resulted in a more protective regime for industrial hygiene in Chicago and in the whole of the State of Illinois. In this urbanising world, the desire for nature was not only a privilege of the upper classes, but the contemporary push for segregation was such that numerous conflicts emerged regarding the use of forests, beaches or the rural surroundings of cities for a day’s relaxation. In the middle of natural spaces, unions and local communities created educational camps that focused on learning about natural environments for urbanites otherwise confined to their city districts or to their factories. These different actions diffused a renewed sentiment of the need for nature which was well-rooted prior to the second World War, and Montrie highlights that this need was reinforced with the federal program for conservation during the New Deal.

Dan Ernst's exam on public health law

Dan Ernst strikes again with an amazing exam question for his legal history course, this time on public health law in the US (see here for an earlier one on grazing). Some excerpts from the essay:

The Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.”  Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.”  But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court.  Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.” 

*****

In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them.  When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances.  The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact.  The board of health “could obtain its information from any source and in any way,” the court noted.  If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.”  The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’” 

US Public Health Service officers, c. 1912