Taking a break

Pretty ironic that the last post here was on Gaza.

Given the current situation here, I'm taking a break from blogging.

Praying for peace,

David

Property in Gaza's sands

Dotan Halevy recently published "Sand and the City: On Colonial Development and its Evasive Enemies in Twentieth-Century Palestine" in Environment and History. The abstract:

This article traces the colonial origins of a crucial aspect of the environmentalist discourse since the mid-twentieth century - the idea that planetary substances should be stripped of ownership rights and become in and of themselves the subject of rights. The article looks closely at the Gaza region under British mandatory rule to explain how the rehabilitation of Gaza city, devastated during WWI, has failed. Gaza's reconstruction efforts, the article argues, collided with the British initiative to arrest the drift of dunes along the coast of southern Palestine. Throughout this project, the British administration extinguished Arab property and usufruct rights to expand state domains. They backed this policy with an elaborate ecological perception that saw sand and its inhabitants as agents of environmental ruin. The quarrel that has developed thus made the Gaza region an imperial test ground for probing what sand is? Does it have a history? And, therefore, can it be claimed as an object of rights? Divorcing nature from culture, the British administration in Palestine rejected the validity of sandy lands' economic past and constructed them as inhospitable 'wastelands' - a purely natural element. As such, sands could be subjected to governmental 'development' through afforestation and urbanisation while time-honoured agricultural practices and land rights of the local coastal population were neglected.

Map of Gaza dunes, Survey of Palestine (1931)

Water law in common law cultures - Getzler's synthesis

The latest issue of Western Legal History is dedicated to the topic of "Water", and I plan to post on a number of the pieces in this issue. 

I'll start with Joshua Getzler's masterful survey of water law in Britain and many of the territories it ruled at various points in history, "Ownership and Control of Fresh Water in Common Law Cultures". Getzler manages not only to integrate major developments in many legal systems - including those of the US, Canada, Australia, New Zealand, India, and Mandate Palestine - and across nearly a millennium (beginning with Bracton), into a succinct and coherent whole, but he does so while elegantly connecting classical doctrine with current concerns, such as environmental protection and indigenous water rights. 

One aspect of the article that I particularly liked was its unpacking of the intertwined and often contradictory lines of thought in the common law, which Getzler deftly connects to Romanist and feudal ideas of property.

I highly recommend this article to anyone looking for a broad yet succinct survey of the history of water law.

(For more on water law in the British Empire, see my posts here.)

Public rights and standing

Owen Smitherman has posted "History, Public Rights, and Article III Standing", forthcoming in the Harvard Journal of Law and Public Policy. The abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Justice Thomas (Stetson University)

Nuisance, planning and the common law in Bombay

Continuing themes from recent posts on British India and on nuisance: Sukriti Issar recently published "Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay" in The Journal of Legal History. The abstract:

The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Plan of Bombay about 1760, from James Douglas,
Bombay and Western India. A series of stray papers (1893)

Privatizing water and fish in colonial India

Devika Shankar's article on property in water and fish in India is now also a blog post at Past & Present. Shankar explains that her article reflects 

a close analysis of over 10 important and highly cited cases from different parts of British India in which judges deliberated on whether flowing water and fish could be treated as private property. Starting with a significant set of cases relating to the planting of stakes in the sea off the coast of Bombay, the article then primarily looks at cases involving rights over rivers in the fluid landscape of the Bengal delta. The article not only highlights the enduring confusion surrounding the status of water in colonial Indian law, but also looks at the different ways in which judges interpreted roman law and precedents from English common law while reaching their judgments. After reaching a variety of conclusions, by the 1880s high courts had begun to simultaneously make room for unprecedented private rights over flowing waters in colonial India while rendering these rights largely redundant by insisting that fish in these waters could not be counted as property until they were caught. The conflicting pull of these judgments however began to create serious problems in Bengal where fishing rights were considered to be especially valuable. It was in order to overcome this impasse that the Bengal government ultimately passed the Bengal Private Fisheries Protection Act in 1889 granting landholders significant rights over fish in rivers across the province. It would do so by significantly strengthening the kinds of private rights that could be claimed over water, and inaugurating a novel category of “private waters” in tidal waters in Bengal and other parts of India. By tracing the arguments and logics that ultimately paved the way for this act, this article highlights the importance of recognizing colonial India, and especially Bengal as an significant site for experimentation with new forms of private property rights over flowing waters.

Charley Brown, Illustrated Guide to the South Indian Railway (1913)

More on property in water and fish in colonial India here.

Cottages as public nuisances

More on public nuisance: Maureen Brady recently posted "Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor", forthcoming in Depaul Law Review. The abstract:

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters.

Blackstone, Washington DC

The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear.

The evolution of US NOx standards for cars

Dan Farber at Legal Planet recently posted on "Cars, Smog, and EPA". An excerpt:

For the first 20 years of federal regulation, Congress set the NOx [nitrogen oxides] standards for new cars itself. That’s quite different from the standards for industrial pollution sources, which Congress has always delegated to EPA. The reason may have been the high political stakes in the car industry or the relatively easier task of setting standards for new products in a single industry using a single energy process.

East River and Manhattan Skyline in Heavy Smog (Chester Higgins, Jr., EPA, 1973)

... The initial standard, set in the 1970 Clean Air Act, was 3.1 grams per mile (gpm) for NOx. Achieving that standard was thought to be nearly impossible when Congress created this mandate, but the mandate forced the car companies to make technological breakthroughs with catalytic converters.

Note that the standard is set in terms of pollution per mile rather than pollution per gallon. That means that any increase in fuel efficiency automatically helps a company meet the pollution standards as well. Theoretically, a car could have no pollution control at all but get such phenomenal mileage that it met the pollution standard. Actual mileage has improved but not enough to obviate the need for pollution controls.

Congress adjusted the standards twice. A 1977 amendment reset the limit to 1 gpm in 1981. The 1990 amendments changed the standard to 0.6 gpm, effective in 1994. These are called Tier 1 standards. Apparently Congress did not relish the task of periodically resetting the standards itself  The 1990 Amendments authorized EPA to set standards for 2004 and beyond.

*****

This has to be considered a successful regulatory program. The Biden proposed standard  [of 2023] allow less than 1% of the pollution levels that Congress mandated in 1970.

Water access and historical redlining

Charles W. Sterling III recently published "Connections Between Present-Day Water Access and Historical Redlining" in Environmental Justice. The abstract:

Although challenges in water and sanitation access are often assumed to be issues of low- and middle-income nations, more than 400,000 homes in the United States still lack access to complete indoor plumbing. Previous research has demonstrated that the remaining plumbing challenges are more prevalent in communities with high Black and Brown populations. This study hypothesizes that the 1930s practice of redlining by the Home Owners' Loan Corporation (HOLC), which systematically denied loans to minority populations, is linked to present-day inadequate plumbing access (i.e., defined as incomplete plumbing above the national average). Digitized HOLC maps for 202 urban areas across the country and U.S. Census data from the 2016 to 2020 American Community Survey were combined to interpolate the modern-day plumbing access for historical neighborhoods (n = 8871 communities). Analysis via binomial logistic regression demonstrated that nationally, redlined communities (HOLC Grade “D”) are significantly more likely to have a rate of incomplete plumbing above the national average compared with greenlined communities (HOLC Grade “A”) (0.1352; confidence interval = ±0.036). This finding was also observed for three of the nation's four census subregions (Northeast, Midwest, and West). Slight differences by region in relationships between the proportion of specific racial/ethnic populations on rates of incomplete plumbing demonstrate the need for targeted place-based interdisciplinary examinations of exclusionary practices. The demonstration of the present-day impacts of redlining after nearly 90 years emphasizes the need to intentionally mitigate past injustices to ensure modern-day equity.

Water rights and forest regulations in the Charter of the Escartons (1343)

The Grand Charter of the Escartons

I was fortunate to be able to spend some time this summer along the Guisane River, in the area formerly known as the Dauphiné, today in southeastern France. The river is notable for its old canals, still in use, and the surrounding mountain slopes are covered in forest. It turns out this landscape has an interesting legal history.

In 1343, Humbert II, the last Dauphin of Viennois (before that title passed to the kings of France and was used for the heir apparents to the royal throne), confirmed the rights of the people of the Briançon region in the "Grand Charter of the Escartons", effectively creating a sort of autonomous republic free of feudal obligations that survived, with its rights confirmed by the Kings of France, until the French Revolution. Two articles caught my eye (my translation from the French translation by Fernand Carlhian-Ribois):

Art. XVII  : The people of Briançon now have the right to build canals to water their land, take water from torrents and rivers without having to pay the right of use either to the Dauphin Humbert or to his heirs and successors.

Art. XVIII  : It is forbidden for the officers, Dauphins and Nobles to cut timber or firewood in the forests of the Communities of Briançonnais, Queyras, Vallouise, Césane, Oulx, Pinet, Chevalette, Fontenils, or other places in the Baillage, because the cuts are the cause of floods, landslides and avalanches. This prohibition is perpetual. 

Article 18, with its early recognition of the connection between deforestation, erosion, and flooding, is interesting for its popular environmentalism, blaming the environmental degradation of the mountain region (a theme that became prominent again in the nineteenth century; see. e.g., George Perkins Marsh's Man and Nature) on the feudal rights of the nobility, and abolishing those rights forever. 

And I wonder what the effect of Article 17 was on riparian conflicts. Said Guisane River is full of canals (see photo below) leading off to mills on the riverbanks and then returning the water downstream. While family members were enjoying rafting the stream, I was imagining the conflicts between riparian owners and public users that must have resulted from the many dams and diversions. Local legal records must be full of such riparian conflicts, and I would think that Article 17's right to take water free of charge must have complicated the issue.

CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches. 

The reasonableness standard, Israel's current crisis, and Edward Coke

As protests continue to erupt in Israel over the government's proposal to oust the power of courts to review decisions of the government and its ministers for reasonableness, I thought it worth taking a look at the historical origins of this doctrine in an area of particular interest to this blog - water law.

Israeli administrative law's reasonableness standard was inherited from the British, who ruled Palestine from 1917 to 1948 and imported much English law and legal culture to the middle eastern jurisdiction. In the 1928 Supreme Court case of AG v Altshuler ([1920-1933] PLR 273), for instance, the court held that a municipal bylaw of Tel Aviv was invalid due to unreasonableness, relying on the English precedent of Kruse v Johnson ([1898] 2 QB 91).

Sir Edward Coke

As many will know, the reasonableness standard was apparently introduced to English law by the 1598 decision of the Court of Common Pleas in Rooke's Case (5 Co Rep 99b, 77 Eng Rep 209). At issue was the power given to the Commissioners of Sewers by statute (the 1531 Statute of Sewers) to assess lands adjoining water courses in order to fund the building of works to protect adjacent lands from flooding. The Commissioners assessed a certain Carter, who had seven acres of land flood-prone adjoining the Thames, with the costs of repairing the banks of the river along a long segment of the river, leaving a further 800 acres, possessed by others and similarly threatened by the waters, free of charge. In their defence, the Commissioners pointed to the language of the statute (s 3), which gave them the power to make repairs 'as Case shall require, after your Wisdoms and Discretions'. Edward Coke's report explained what he saw as the rationale behund the court's rejection of this claim:

Notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law [emphasis added - DS]. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections ; for as one saith, talis discretio discretionem confundit [such discretion confuses discretion].

So administrative discretion, explained Coke, must be subject to 'the rule of reason and law'.

One might have legitimate criticisms of the way the reasonableness standard is currently applied in Israeli law, but it is clear that the current government's main motivation in its proposed legislation is simply the desire to be free of the rule of reason and law - which explains why there are hundreds of thousands of us out on the street protesting...

The right to abate a public nuisance

William B. Meyer's "“No Quixotry in Redress of Grievances”: How Community Abatement of Public Nuisances Disappeared from American Law" was recently published in Law and History Review. The abstract:

Before 1859, the right of any member of the public to abate a public nuisance existed unchallenged in American law as a judicially recognized form of popular justice. In that year, the decision in Brown v. Perkins, authored by Massachusetts Chief Justice Lemuel Shaw, restricted the right to those who had suffered particular injury. The decision grew out of a suit for damages by the owner of an illegal saloon, which had been sacked by a local mob. Reversing what Shaw himself had said in his charge to the jury in the same suit in the preceding year, it had little grounding in earlier American case law. Shaw's prestige and the apparent demands of public policy, however, helped win courts over to the new doctrine in relatively short order. The change was most enthusiastically promoted by judges and scholars of conservative leanings disturbed by the threat of popular excess and most resisted by those of more radical inclinations. It paralleled American law's broader shift in the same period toward centralized regulation and the constitutionalization of rights and powers.

Lemuel Shaw, 1856

The postwar ocean frontier and its legacy for law of the sea

Just out in Environment and History: "Wild Blue: The Post-World War Two Ocean Frontier and its Legacy for Law of the Sea" by Helen Rozwadowski. The abstract:

The post-1945 ocean came to be viewed through the cultural prism of 'frontier', denoting both a bonanza of resources and also lawlessness that impeded secure investment in their exploitation. After Arvid Pardo inserted the cultural representation of ocean frontier into law of the sea discussions with his 1967 proposal of the ocean as the Common Heritage of (Hu)Mankind, the prospect of using hitherto unexploited ocean resources to equalise an unequal world was widely, if not universally, embraced. While many commentators deny the power of the ocean frontier representation, this paper argues that, even as environmental concerns about pollution and declining resources aligned with worries about global overpopulation, the ocean continued, during the protracted negotiations of the third United Nations Conference on the Law of the Sea beginning in 1973, to be viewed as full of resources. The historical context of decolonisation and Garrett Hardin's 1968 Tragedy of the Commons argument reframed the ocean into a site for competition over resources.

Arvid Pardo monument at the University of Malta (Dans)

Jhering and environmental legal history

The German-language legal history journal Zeitschrift für Neuere Rechtsgeschichte last year published Sascha Ohlenforst's article, "Vom Sinn und Nutzen der Umweltrechtsgeschichte. Methodische Überlegungen auf Grundlage der Interessen- und Wertungsjurisprudenz" [On the sense and use of environmental legal history. Methodological considerations based on the jurisprudence of interests and values.]. The abstract:

How to write a history of environmental law that can be integrated into environmental and  legal history? What insights can be gained from dealing with past environmental law? The article discusses and problematizes essential questions of modern legal history and, on the basis of the jurisprudence of interests and values – especially with reference to Rudolf von Jhering –, promotes a possible new orientation of the history of environmental law. Such a method considers above all the different interests of historical actors and reference groups as a major factor of dynamization in environmental law. Examining these interests as social factors not only contributes to a deeper understanding of the particular human-environmental relations in the past, but also provides a detailed insight into the development of law. By consulting a case study on mining law, both the dynamizing factors as well as the continuities and disruptions between past and present law are illustrated.

Tani on Calabresi and the "Economic Style"

Karen Tani just completed a fascinating four-part series at Legal History Blog on Guido Calabresi's particular form of law and economics scholarship and its influence on legal thinking. Though Tani doesn't directly deal with environmental issues (nor did Calabresi give them much attention), the series raises important questions that have relevance to understanding the history of environmental regulation and environmental law scholarship in recent decades. In particular the series focuses on the question of to what extent economic thinking in Calabresi's writings claimed exclusivity or made room for other ways of thinking about legal problems. 

Calabresi himself often insisted (as in the subtitle "One View of the Cathedral") that economics was just one factor to be considered in legal analysis, and his classic works (such as The Cost of Accidents and the Cathedral article) also at least paid lip service to this idea, but I have always thought that the depth of Calabresi's economic analysis, juxtaposed with the cursory treatment he usually gave to distributive considerations, broadcast the message that efficiency was the key factor to be considered.

This way of thinking has obviously had great effects on environmental law, starting from the way environmental issues are typically presented to law students - as negative externalities that need to be internalized or collective-action problems that need the aid of law to overcome, rather than, say, as issues of distributive justice or problems of environmental ethics.

Rome and the sea of law

ASOR (Ancient Near East Today) just put up a post by my editorial colleague, Emilia Mataix Ferrándiz: "A Sea of Law: The Romans and Their Maritime World". Mataix Ferrándiz begins:

The sea was key for Rome’s success; it served as the setting of several battles that granted them hegemony over the Mediterranean as well as the main highway for both ideas and commerce. However, human bodies are not naturally suited to the sea; entering or crossing it means challenging one’s own capacities in the face of the power of water. The latter is echoed in literary sources, which often focus on the sea’s enormity and wilderness, thus evoking — and sometimes even exaggerating — its aura of mystery and uncertainty and the effect it has in ancient societies.

Roman legal sources, on the other hand, tend to focus more on the practical challenges and effects of interacting with the sea, presenting a different vantage point from which to study how Romans regarded and dealt with the challenges presented by the sea. So what can we say about how Roman jurists perceived the sea? Although jurists coincide in their understanding of the sea as a dangerous realm not governed by their civil law, the solutions which they provided for similar problems vary from jurist to jurist and from one period to another.

Roman mosaic from Veii (Italy), 3rd-4th century AD, Badisches Landesmuseum Karlsruhe (Carole Raddato)

In the Roman world, spaces were governed by different legal fields. While the land was managed by ius civile (the law of Roman citizens), the sea was a space of ius gentium, or the law of all peoples. It was the jurist Marcian (second–third century CE), who wrote that the sea was the common property to all according to natural law. From his writings the main point to note is that the sea is not subject to an individual’s dominion and, therefore, is also not subject to Roman governance. Despite Roman imperialistic aims and propaganda, it is unlikely that the ideology of rule over land and sea extended to any practical attempts to regulate the use of the sea. 

Mataix Ferrándiz goes on to argue that

Environmental laws circa 1970

The Journal of Global History recently published Lena Joos's "‘Only One Earth’: Environmental Perceptions and Policies before the Stockholm Conference, 1968–1972". The article is based on a comparative study of sixty-three preparatory country reports for the UN Conference on the Human Environment 1968–1972 (UNCHE). One of the article's sections, "Environmental policy measures around 1970 in global comparison", has a lot of information on environmental laws in these countries at the time, including a table with dozens of laws from various countries on a variety of environmental issues. Joos writes that legal measures were the most widespread reported approach to solving environmental problems:

In 1972, forty-nine countries (78%) had legal regulations on the environment in place. Three different forms of legal measures can be distinguished at the national level. Firstly, environmentally significant changes to the legal framework, for example, laws, which defined the responsible actors and empowered them with the requisite powers. Other measures of this type were laws that regulate, for example, the granting of licenses and the privatisation or nationalisation of environmentally significant goods. For example, authorities issued licenses for hunting animals (Botswana, Israel), forest areas (Brazil, DRC), and industrial sites (Denmark, Israel, Norway). Privatisation was not mentioned in any report; nationalisation of forests occurred in Nepal (1956) and Iran (1963); nationalisation of the land was introduced in Senegal (1964). Overall, however, measures concerning ownership were rarely reported, even in socialist countries. The second form, legal requirements, can further be divided into precepts and prohibitions. For instance, countries set emission standards for industries (Canada, Japan), motor vehicles (Denmark, Ireland, the USA), or required filters for the production process (Brazil, FRG, Norway, Portugal, Sweden, Ukraine, Yugoslavia). Prohibitions aimed at preventing actions harmful to the environment were widespread and mentioned in 71% of the reports. The most famous example was the prohibition of the pesticide DDT, which was banned by nineteen of the sixty-three countries between 1969 and 1971. Closely linked to the requirements and prohibitions was the third form of legal measures: the sanctioning of environmentally damaging behaviour, e.g. fines for polluting activities.

Not all countries surveyed implemented legal environmental standards. And the mere existence of environmental legislation says little about the level of detail and the design of the laws. Thus, while many countries had environmental laws, in most, these were fragmentary. Around 1972, according to the reports, only Japan, Sweden, the GDR, and Switzerland had comprehensive environmental laws. In all other cases, the laws covered only one specific sector of the environment such as the protection of wildlife, air preservation, soil conservation, nature and landscape protection, water and sea protection, town planning, forest conservation, noise, radiation protection, waste management, and pesticides. In terms of the implementation date, individual environmental laws were in some cases implemented before 1950. However, most of the laws mentioned in the country reports originated in the fifteen years before the UNCHE. The large-scale establishment of environmental legislation was thus a fairly recent development around 1970 and can be connected to some extent to the preparatory process of the UNCHE.

This is an interesting and important argument, though I'd like to see more evidence before being convinced that a law enacted in 1960 should be credited to the preparatory process of the UNCHE. 

12 June 1972 - Meeting of the Second Committee of the United Nations Conference on the Human Environment, Stockholm, Sweden. At the presiding table during the meeting of the Second Committee (left to right): Mr.Luis Perez Arteta, Programme Director of the Second Committee; Joseph Odero-Jowi (Kenya), Chairman of the Second Committee, and M. Plehn-Mejia, Committee Secretary. (Photo Credit: UN Photo/Yutaka Nagat)

Joos goes on:

Not so fast: Nature versus the Common Law concludes

I haven't posted in the last few weeks, leading my friends at the Legal History Blog to reasonably conclude that my series on Nature versus the Common Law was finished. But now I have some time to post what is in fact the final installment in the series.

The posts in this series, based on my article in Clio@Themis, aimed to illustrate a once-common way of thinking about law and legal claims, in which the natural environment was held not only to provide the physical background on which polities and their legal systems existed, but to demand from these legal systems a measure of accommodation. For some judges, it is true, the demands of nature, however worthy or desirable from a social or economic point of view, had no place in court; a judge's role was to resist such claims in the name of the law. For many others, however, environmental realities might be imbued with normative force powerful enough to outweigh considerations of legal precedent and tradition. Moreover, while environmental differences could sometimes break the chains of black-letter law, environmental similarities might at the same time create new legal bonds, as in the Indian and Canadian cases that looked to the law of the independent United States of America, with is great rivers, for legal guidance. All this is to say that in the context of water law in the British Empire, nature could often be "jurisgenerative", to use Robert Cover's term – creating law.

The environmental rhetoric of these courts may, at first glance, seem but a particular instance of the wider phenomenon of colonial and newly independent courts working to stake out the independence of their legal systems from the law of the old country. Yet this would be a mistake: Most of the judges arguing for nature's normative force were themselves British; and in the cases examined here even judges of the independent United States argued not for a general rejection of the English common law, but for the inapplicability of some of its water law rules due to supposed environmental incompatibility.

In conclusion, though, it should be noted that this study has shown that nature also had a "jurispathic" role, impeding the smooth flow, or "transplant", of legal norms around the empire. Legal norms, in particular the common law, spread around the British Empire through a network of orders, legislation, publications, correspondence, educational institutions, career paths, and more. Yet the spread of norms, never smooth, was hampered by a number of factors, some of them natural : distance, forbidding seas, and monsoon winds, to name a few. These factors impeded the transmission of legal ideas and norms in all areas of law. At the same time, this study has highlighted an additional mechanism through which nature sometimes frustrated the spread of norms: perceived environmental similarity and difference.

Nature thus had a dual normative role in this context: creating new norms while at the same time extinguishing others. One need not take a deterministic view of the place of nature in legal history, nor recognize in nature any sort of agency of the intentional kind, to acknowledge that nature had an important role in constituting the connections that both facilitated and obstructed the global flow of water law in the age of empire.

Yet if the first set of law-impeding environmental factors, deriving from physical impediments to legal communication, has historically applied with similar force across all areas of law, the efficacy of the latter mechanism, based on perceived environmental factors, presumably has been correlated with the degree to which the area of law directly dealt with environmental issues. With regard to water law, as we have seen, whether environmental conditions in fact dictated or determined the rejection of common law norms, it is clear that judicial perceptions of nature did play a role in impeding the spread of English norms in this field. I have argued elsewhere that forest law, too, was at least in some contexts heavily influenced by perceptions of environmental foreignness and change. Further study might reveal similar patterns with regard to other related areas of law, from sanitation regulation to wildlife protection.

Happy spring holidays!

The history of Sierra Club v Morton

Jotwell recently ran a review by Angela Fernandez of Daniel P. Selmi's Dawn at Mineral King Valley: The Sierra Club, the Disney Company, and the Rise of Environmental Law (U Chicago Press, 2022). Fernandez writes:

Sierra Club v. Morton [known to some as the "Should Trees Have Standing" case - DS] is a seminal 1972 U.S. Supreme Court case on standing, the essential procedural question of who has a legal right to initiate a lawsuit based on a plaintiff’s alleged injury traceable to a defendant’s unlawful conduct. Daniel Selmi’s new book provides a deep dive into the history and context of this famous case, showing that it was about much more than the majority decision’s denial of the Sierra Club’s standing. And it was not, as some have claimed, launched as a test case to establish standing for environmental groups or the entities themselves, the possibility William O. Douglas went into in his famous dissent dear to the hearts of those interested in the Rights of Nature.

*****

Despite the fact that Selmi seeks to de-center standing in his history of the case, or at least destabilize the understanding that standing was what Sierra Club v. Morton was always meant to be about, he presents an excellent and thorough discussion of the issue. Selmi explains that the Sierra Club insisted on its general interest in a case that would impact the environment of concern to its members rather than Club members’ actual use of the area, which the Supreme Court indicated it would have accepted. As Justice White reportedly put it: “Why didn’t the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue.” (P. 204.)

Nature versus the Common Law VI: Diversion of water

In the last installment in this series we looked at how the English rule on escaping water in Rylands v Fletcher was rejected in British India due to perceived differences in the environments and needs of the two countries. Today we look at a classic issue of water law, complaints by riparian owners of upstream water uses that interfered with their own uses. As with the issue of escaping water, what was considered "natural" could turn, here too, on local natural conditions.

The traditional common law rule of conflicting riparian uses – that an upstream riparian may not divert a stream's water to the (unreasonable) detriment of downstream owners – was explained by the court of King's Bench in 1625 (Shury v Piggot, 81 English Reports 280) in terms of natural law: "a water-course […] doth begin ex jure naturæ, having taken this course naturally, and cannot be averted" and "the nature of this [water-course] is to be current [i.e. to flow]".

In the leading case of Evans v Merriweather in 1842, the Illinois Supreme Court advanced a distinction: An upper riparian might reasonably consume all the water in the stream if his use were a "natural" one, necessary for existence, but not were it to be considered "artificial", for the mere increase of "comfort and prosperity". The court then suggested that the application of this distinction would vary depending on natural conditions:

The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water doubtless is absolutely indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here [in Illinois] it might increase the products of the soil, but it is by no means essential, and can not, therefore, be considered a natural want of man.

What riparian uses were to be recognized as "natural", and therefore permitted, was thus dependent on the climate and environment. Irrigation would be considered an "artificial" use in the American Old Northwest, as it would be in England, but the court had legitimized changing the law if and when the common law spread to arid lands.

This way of thinking was crucial for the development of water law in the arid western states and territories of the United States, in which the traditional common law of riparian rights was rejected in favor of a new system. The new law, known as "prior appropriation", opened up water resources to appropriation by all, not just riparian owners, and allowed them to take as much of the water as they could put to beneficial use, regardless of the effect on later appropriators. An early case from Colorado discussed whether an appropriator could dig a ditch across another's land without permission, an invasion of property that would clearly not be allowed under the traditional common law. Along the way it advanced a general theory of the adaptation of property law to environmental conditions:

Conference: Law and nature in the Middle Ages

Courtesy of ESCLH Blog: An upcoming conference (16-17 March) at Université d’Orléans on law and nature in the Middle Ages. Talks include Marie Bassano on the relationship between man and nature among late-medieval jurists and Dante Fedele on the medieval jurists and the sea.

The full program is here.

Nature versus the common law V: Rylands in India

In previous posts in this series we looked at how courts dealt with the question of whether the common law rules of water law needed to give way to the felt necessities of different environmental conditions in two doctrinal contexts - public rights in non-tidal rivers and shifting watercourses. Next up is an examination of how "the rule in Rylands v Fletcher" fared in India.

The 1868 decision of the House of Lords in Rylands, affirming an 1866 decision of the Court of Exchequer Chamber, is one of the best-known cases in English tort law. The defendant in the case had built a water reservoir on his land to store water for powering a mill, taking all due care, but the water in the reservoir escaped through some old mineshafts and flooded the mines of his neighbor. The court ruled that if a defendant brings something dangerous on to his land and that thing escapes and causes damage to a neighbor, he is liable in tort even if he acted without fault.

Of particular relevance for this study, Lord Chancellor Cairns's ruling turned to a large extent on the issue of whether the use made by the defendant landowner was natural or not. Lord Cairns wrote that if the defendant's land had accumulated water by "natural user" of the land, and then "by the operation of the laws of nature" flowed onto his neighbor's land, there would be no liability. If, however, the defendant used his land for "a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it", liability would ensue were the water to escape and cause damage, as it did in this case.

Even before the House of Lords had issued its opinion in Rylands's appeal, the Madras Railway Company decided to try and have the rule in the case established by the Court of Exchequer Chamber imported to India. A couple of tanks (reservoirs) located near the rail line in the District of North Arcot had burst several times in 1865 and 1866, and the resulting floods had damaged embankments, bridges, and culverts belonging to the railway company. The company brought suit against the landowner for the damages (Madras Rwy Co v Salvah Makaraju, 5 Madras High Court Reports 139 (1870)), at the same time refusing to allege negligence on the part of the defendant, choosing instead to rely on the new rule of Fletcher v Rylands. It seems that the railway company was hoping from the start to appeal the case up to the Privy Council in London, hoping, as the Madras High Court put it, to take the final decision out of the hands of "Judges conversant with the necessities of the country", instead having "a rule […] imposed elsewhere by Judges not so conversant" (Madras Rwy Co v Zamnida'r of Ka'vatinaggur, 6 Madras High Court Reports 180 (1871)).

Weak states and the commons

Vincent Geloso and Félix Foucher-Paquin have posted "Weak States and the Commons: Fisheries and Economic Development in the Gaspesian Peninsula circa 1830". The abstract:

The inefficiencies of common property fisheries are well-known to economists. To avoid over-exploitation, they propose multiple forms of government solutions like taxes, quotas and the enforcement of property rights regimes designed to avoid over-harvesting. However, can there be efficient arrangements under statelessness or in the presence of weak states? One such example is the Gaspesian Peninsula (in the Canadian province of Quebec) during the first half of the 19th century. There, a single firm (the Charles Robin Company) came to dominate the market and it was able to effectively to restrict entry. In this paper, we unveil that it was able to do so by reducing the prices of imported goods that it would give to local fishermen in exchange for a part of their catch. This had the effect of deterring fishermen to contract with other merchants as well as deterring other merchants from entering the market. It also had the effect of making the region, contrary to what historians depict, richer than most regions of Canada at the time. We take this as an example of the ability to deal with commons problems in the presence of weak states.

Alexander Henderson, Causapscal River (1872-1875)

Nature versus the common law IV: Shifting watercourses

In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.

One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.

Customary groundwater management in Japan

Recently published in Water History, Takahiro Endo's "The Kabu-ido system and factors affecting local groundwater extraction control: case study of a customary groundwater management in Japan". The abstract:

In the early 1800s, a water conflict occurred in a community named the Fukuzuka Ring Levee on the Noubi Plain, Japan. Upper villages required artesian wells for irrigation and domestic uses, but lower villages did not welcome them because drainage from the wells caused impoundment damage to their paddy fields. The Kabu-ido system was a set of rules, including regulation of the number of wells per village, introduced to de-escalate the conflict. Under the system, groundwater uses were controlled not by external authority, but by the community residents themselves. This paper has two purposes. First, it reconstructs the daily operations of the Kabu-ido system, principally by referring to surviving local diaries, to describe hitherto unknown details regarding the management of groundwater by local people 200 years ago. The diaries show that well managers, selected from residents, regulated the use of wells using various tools, including permission and surprise inspection. Second, this paper evaluates to what extent self-imposed numerical regulation was successful by checking the number of wells listed in village expenditure notes. The documents indicate that regulation did not always work. The factors underlying this are considered using the analytical framework from the commons studies. Analysis shows that, while institutional arrangements of the Kabu-ido system, such as well management with keys, rules of joint responsibility, and the prohibition of indoor wells, work positively in enforcing numerical regulation by lowering the costs of monitoring for unauthorized wells, the natural characteristics of groundwater and climate conditions such as sudden drought work negatively.

Noubi Plain

Nature versus the common law III: Canadian and Indian rivers

Bhanutpt, Krishna River

In the previous post in this series, we looked at how nineteenth-century American courts debated whether the common law rules of riparian rights applied to the grand American rivers, seemingly so different from those of England. But the question of whether the common law applied to environments unlike England's soon arose in territories around the British Empire as well. Robert Travers has argued that while judges in England had used ideas of natural law to modify the common law, in India natural law arguments were used in some contexts to support the replacement of local law by English norms. Here, however, we see the reverse, with nature invoked to reject English rules of water law in favor of new norms, felt to be more appropriate to the local environment.

In an 1842 case (Esson v M’Master, 3 NBR 501 (1842)) the New Brunswick Supreme Court noted the "great difference in the character of the small rivers of England and those of this Province", but thought that this consideration "may be thought more fit for the Legislature than the Court ". Yet the same court in 1849 (Rowe v Titus, 6 NBR 326 (1849)) adopted the ruling of an American court, following the argument of counsel that:

The principles of the law of England, in respect to rivers, cannot be applied to this country : there the rivers are not subject to such sudden freshets, nor are they used for the same purposes as in this country ; the cases therefore on this subject in the United States, where the rivers are used for the same purposes as in this country, will be very important.

The idea that Canadian courts should follow American courts rather than English ones when dealing with rivers was not limited to New Brunswick. In an 1852 case (R v Meyers, 3 UCCP 305 (1852)), Chief Justice James Macaulay of the Upper Canada (Ontario) Court of Common Pleas, after examining the English precedents which normally would be thought binding in the British colony, demonstrated the legal power of geography over the common law by contrasting English precedents with decisions from "this side of the Atlantic", lumping together American and Canadian cases without distinguishing between them. Macaulay's judgment was also significant in ruling that the test for navigability of a river was its "natural capacity", not its use in practice, once again demonstrating the normative power of nature. The influence of American jurisprudence was evident as well in an 1882 opinion of Justice Samuel Strong of the Supreme Court of Canada :

I do not hesitate to say that the rule which appears to have been adopted as a principle of the common law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the courts of most of the States […]

The right to nature in 1880s Ireland

Just out in The Historical Journal is "The Right to Life, the Right to Nature, and the Impact of Irish Land on Political Thought in the 1880s" by Andrew Phemister. The abstract:

The Irish Land War was a pivotal conflict in the history of liberal political thought. With significant impacts on both sides of the Atlantic, events in Ireland were about more than Irish self-determination. Heavily reliant on a discourse of natural right, and asserting a relationship between land ownership and democratic-republican citizenship, the Land War provided a vehicle for popular radical opposition to an increasingly positivist liberalism. This article examines the rationales and political assumptions underlying the demand for land, and how such arguments catalysed an intellectual response among liberal political thinkers. Particular moral and metaphysical ideas about the distinctiveness of land allowed agrarian and labour radicals to reassert individualized but non-possessive rights to natural resources. Rooted in a materialist politics of the human body, this purposive conception of land posed a significant threat to claims for private property, social order, and the ameliorative authority of the state, pressing both liberal and conservative thinkers away from unstable notions of individual rights. The crisis over Irish land helped to shift the terrain of political argument away from questions of participation and popular power, and toward amelioration and public welfare.

Sic utere versus salus populi

In a series of publications, most importantly her 2009 book, Chasing the Wind, Noga Morag-Levine has argued forcefully for distinguishing between continental European-style "police" regulation and common-law-style environmental regulation based on a nuisance conception. The recent issue of Law and History Review has an interesting article by Morag-Levine, "The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis", in which she finds the roots of this distinction in English law much earlier than she has previously argued. The abstract:

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

from John Speed's 'The Theatre of the Empire of Great Britaine' (1611-1612) (British Museum)

More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :