Negotiating the maritime commons

Another chapter from the previously-noted book, Greening Europe, is "Negotiating the Maritime Commons: Protecting the Baltic Sea in a European Context", by Simo Laakkonen and Tuomas Räsänen. The abstract:

The environmental history of the seas and oceans has generally remained a relatively unexplored theme. This chapter addresses the environmental history of the Baltic Sea, which is a European sea par excellence and the only sea that is entirely located within the continent. We will examine the links between wider historical currents in Europe and the marine environmental history of the Baltic Sea by focusing on three environmental regimes from the end of the nineteenth century until the 1990s. The first environmental regime was developed on an urban level and prevailed from the late nineteenth century until the Second World War. The second environmental regime was developed from the 1960s until the 1970sonaninternational level in the Baltic Sea region. The third environmental regime, spanning the 1980s and 1990s, consisted of developing wider European cooperation. These three different environmental regimes continue to cooperate in the region even today.

How control of nature shaped the international order

Posted recently to International Law Reporter, a nomination by Gail Lythgoe for the most interesting, important, or influential article or book published in 2022:

Joanne Yao, The Ideal River: How Control of Nature Shaped the International Order (Manchester Univ. Press 2022)

This book explores the geographical imaginaries of three rivers (the Rhine, Danube, and Congo) and how these very imaginaries shaped the constitutions, structure, and life of three early international organizations. It is a marvellous tale of how (and why) experts sought to tame nature and also says much about law’s relationship to the physical geography. I always really recommend and admire it because of how well written and engaging it is.

From the publisher's website:

The ideal river examines nineteenth-century efforts to establish international commissions on three transboundary rivers - the Rhine, the Danube, and the Congo. It charts how the Enlightenment ambition to tame the natural world, and human nature itself, became an international standard for rational and civilized authority and informed our geographical imagination of the international. This relationship of domination over nature shaped three core International Relations concepts central to the emergence of early international order: the territorial sovereign state; imperial hierarchies; and international organizations. The book contributes to environmental politics and international relations by highlighting how the relationship between society and nature is not a peripheral concern, but one at the heart of international politics. 

Acid rain and Nordic-Russian cooperation

The recently published book, Greening Europe: Environmental Protection in the Long Twentieth Century – A Handbook, edited by Anna-Katharina Wöbse and Patrick Kupper (De Gruyter Oldenbourg, 2021), has a number of law-related chapters. One is Arne Kaijser's "Combatting 'Acid Rain': Protecting the Common European Sky",  which has an observation on Soviet-Scandinavian relations that takes on additional interest given the news of the day regarding Sweden, Finland, and NATO. The abstract:

In the late 1960s, Scandinavian scientists asserted that the long-range air pollution was causing serious acidification and that emissions all over Europe would have to be diminished. The prevailing view at the time was that air pollution was a local phenomenon best handled by building high smoke-stacks, and the major polluting countries were opposed to spending money on protecting areas far away in other countries. This chapter analyses how the discovery of “acid rain” triggered the first international research projects to confirm long-range air pollution and how, in a second phase, international negotiations involving scientists, policymakers, and diplomats resulted in the Convention on Long-Range Transboundary Air Pollution in 1979. Later on, special protocols were adopted, and the signing nations promised to decrease their emissions in accordance with specific goals. Cold War politics played an interesting role in the negotiations and led to an unexpected alliance between Nordic countries and the Soviet Union.

Effects of acid rain, woods, Jizera Mountains, Czech Republic

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.

Roman law and modern nuisance

Vanessa Casado Pérez and Carlos Gómez Ligüerre recently posted "From Nuisance to Environmental Protection in Continental Europe". The abstract:

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

The World Heritage Convention

The website of the Institut Heritage Studies has three reviews of the oddly titled (or translated) 40 Years World Heritage Convention: Popularizing the Protection of Cultural and Natural Heritage by Marie-Theres Albert and Birgitta Ringbeck (De Gruyter, 2015). Some excerpts from Klaus Hüfner's review:

The Convention for the Protection of Cultural and Natural Heritage (World Heritage Convention) was adopted by the General Conference of UNESCO in November 1972, but only came into force in 1975. The Convention, to date ratified by 191 States, belongs without doubt to the most successful international legal documents; it enjoys a tremendous popularity not only in Germany but also worldwide.

*****

The volume consists of seven chapters. The introductory Chapter 1 postulates the preservation of heritage as “an exceptional political, participatory and interdisciplinary act” (p. 2). It follows that it is necessary both in the nomination as well as in measures for the preservation of cultural and natural sites that, “as far as possible, all groups of affected peoples at the local, national or international levels” be involved (p. 3). This demand for critical and constructive participation runs like a red thread through the individual chapters. Another critical remark, on which following chapters go into depth, refers to the Eurocentric predominance. The authors speak of a “glaring imbalance” between the objectives and the implementation of the Convention when one considers the number of inscribed sites in Europe and North America compared to the rest of the world (pp. 5-9). 

*****

Chapter 3 discusses in more detail the evolution of the World Heritage Convention and the associated perspective changes over time, among which four phases are distinguished, which moved away from the initial strict, conservative interpretation towards a popularization of World Heritage. Already in the first phase (1978-1991) the imbalance between “Europe and the rest of the world” (p. 60) could be seen in inscriptions, which, in spite of the increase in the total number of inscriptions in the following three phases up until 2013, still hovered around 50 percent. In 1994, UNESCO finally adopted a Global Strategy to reduce the geographical and cultural imbalances. It involved the question of “how to integrate the visions of cultural diversity as defined in the Convention in the form of intercultural, religious, authentic or social views of diversity into the overall aspect of heritage” (p. 84). But the imbalance continued, the lack of financial and human resources needed to successfully complete the nomination process being suggested as a key reason (p. 93). 

Domestic law instead of international agreements?

The latest issue of Water International published an article by Marco Verweij, "The remarkable restoration of the Rhine: plural rationalities in regional water politics". First, the abstract:

The restoration of the Rhine basin is widely viewed as an exemplary case of international water protection. The river’s clean-up has been characterized by a number of puzzling developments. These include chemical companies reducing their toxic effluents by more than legally required, and riparian governments quarrelling internationally over environmental measures that each of them were undertaking domestically. It is argued that the plural rationality (or cultural) theory pioneered by Dame Mary Douglas offers an empirically valid explanation of these remarkable processes.

The article tells an interesting historical story, with implications for current international environmental issues such as climate change. An excerpt (citations omitted):

The efforts to stop the environmental degradation of the Rhine between 1963 and 1986 were paradoxical. The attempts to do so with the help of international agreements were ineffective at best, and counterproductive at worst. Yet, simultaneously, the domestic efforts to clean up the Rhine were quite effective in each riparian country. 

How technological solutions changed the perception of environmental harm and law

Victor Flatt recently posted an interesting paper on the recent history of technology standards, "Technology Wags the Law: How Technological Solutions Changed the Perception of Environmental Harm and Law". Some excerpts:

The United States... passed landmark laws in the early 1970s that would eventually become the model for environmental legislation worldwide. In addition to carving out strong protections for health and the environment, these laws for the first time supported these goals with direct technological controls on pollution sources. For instance, in addition to requiring that the entire country was to reduce ambient pollution levels to a point at which public health would not be harmed, the 1970 Clean Air Act required new and modified sources of air pollution to install the ‘best pollution control’ that had been ‘adequately demonstrated’. The 1972 Amendments to the Clean Water Act, in addition to enshrining a goal of increased water quality for health and the environment, directed the EPA to set technology-based limits for pollutant discharges from existing industrial point sources. While technological requirements in these federal laws had their critics, the conventional story is that these controls were the first really successful method of reversing pollution in the United States and moving the country towards meeting its public health and environmental goals.

Why the United States finally embraced specific technologically related requirements to reach its public health and environmental goals at this time has many plausible answers. One explanation involves the popular view of technology at the time as a savior providing benefits to humanity.

Zoned in the USA

H-Environment recently posted Richard Walker's review of Sonia Hirt's Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Cornell UP, 2014). Walker writes:

Hirt does four things in this volume. First, she lays out the essentials of American zoning and planning without getting lost in the details. Second, she makes the comparative case for the uniqueness of the United States in terms of its degree of spatial homogeneity and protection of the idealized single-family, detached house. Third, she gives a quick tour of the history of spatial separation in cities and especially the rise of urban planning in Europe, before returning to the deep roots of "exclusive domesticity" in America ideology from the colonial era onward. Finally, she provides a fine, brief history of the establishment of deed covenants and municipal zoning in the US case.

The essence of Hirt's analysis is that American zoning is distinct from all other national planning practices, and that it is so because the spatial order of American society and cities is unique. In this, history matters in showing the depth of American ideas and permanence of US practices concerning what Hirt calls "spatial individualism": freedom conceived geographically as isolation and elbow room. Frederick Jackson Turner goes to town, as it were. Along with this came a uniquely American preference for the single-family, detached house, which dominates urban space and legal practice as in no other country. Hirt certainly recognizes the importance of separating noxious uses from domestic tranquility as the foundation for zoning, but she is nicely attuned to two other things vital to spatial freedom in the American sense: freedom from having to mingle with the lower classes and races and freedom to profit from property development by keeping government at bay except to minimize uncertainty and risk. The desire for spacious, single-family housing segregated by class, race, and function was deeply ingrained in popular bourgeois culture.

One thing I particularly like in Hirt's historical approach is that, unlike almost all other treatments of zoning and spatial segregation in American cities, this one does not begin after World War Two and does not put the bulk of the blame on the federal government's mortgage policies. The New Deal simply put federal muscle and money behind what was already standard practice locked into the fabric of urbanization by the real estate industry and Herbert Hoover in the 1920s. As is so often the case in the United States, government policy and business interests went forth hand in hand to build cities profitably.

Maximum Sustained Yield

H-Environment recently posted a Roundtable Review of Carmel Finley's All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management (U Chicago Press, 2011). Particularly interesting are the comments by Sayuri Guthrie-Shimizu. Some excerpts:

In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.

Call for Papers: Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries

The call for papers for an international symposium on "Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries, 18th-20th centuries", to be held 21-22 May 2015 in Évora, Portugal, has been extended to May 3. From the call:

At the end of the 19th c, within the context of capitalist firm competition and the dynamics generated by technological advance, the creation of global markets for minerals and metals promoted intensive extractive and industrial large scale operations which had a major impact not only on the quality of the water from springs, rivers and seas, but also on air and soils. New industrial landscapes were created in the process under the enthusiasm fostered by the ideologies of progress, nationalism and militarism. While environmental conflicts are today one of the dominant forms of social contention, they remained almost silenced in the past. This scientific meeting addresses the role of those conflicts in the shaping of strategies in Mining and Metallurgical Industries (MMI) and in the emergent knowledge of environmental management and governance that has become embedded in the European legal and institutional framework. From this standpoint, other issues should be also addressed, such as:

• How MMI responded to emergent environmental issues raised by institutions and the civil society?

• How risk and other environmental related concepts became under consideration in business strategies and, especially, what were the scientific and technological initiatives adopted?

• How environmental conflicts varied across time and cultures (organization, components, social influence, etc)?

The full call and more details are here.

Morag-Levine on the history of precaution

Noga Morag-Levine, who participated in the roundtable at the recent ASEH conference on what environmental history and legal history can learn from each other, also recently posted her American Journal of Comparative Law review essay on the history of precaution (following on a condensed, blog, version in 2013.) The abstract:

The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books — The Politics of Precaution by David Vogel — and The Reality of Precaution, edited by Jonathan Wiener with several others — have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.

Edwin Chadwick, who brought the Continental
precautionary approach to Victorian England

This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper’s starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state’s autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative law traditions respectively associated with Anglo-American common law and Continental civil law.

Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:

By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?

*****

By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.

Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation

After discussing a number US Supreme Court decisions, Power goes on:

Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.

But things changed under the Rehnquist and Roberts courts:

During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular. 

French environmental protection

H-Environment recently posted "Environmental Protection in a Light-Green Country", Chris Pearson's review of Une protection de l'environnement  à la française? (Charles-Francois Mathis & Jean Francois Mouhot eds., Éditions Champ Vallon, 2013), a collection of essays on the history of environmental protection in France and its empire. Pearson writes:

As well as asking what is distinctive about French nature protection and environmentalism, particularly in comparison to Britain, France, Germany, and the United States, many of the chapters engage with Michael Bess’s compelling and influential arguments in The Light-Green Society: Ecology and Technological Modernity in France, 1960-2000 (2003). According to Bess, France has become a “light-green society” in which environmentalist ideas are widespread but shallow; “the result is a social order in which virtually every activity is touched by environmentalist concerns--but modestly, moderately, without upsetting the existing state of things too much.” It is noteworthy how the volume turns towards Bess and other Anglophone environmental historians for inspiration, rather than the approaches outlined by the Annales school or other French historians interested in the human-nature relations, such as Andrée Corvol.

Environmental law in the UK

William Turner, The City (1961)

Ben Christman recently posted "A brief history of environmental law in the UK", in which he discusses what he sees as "four key ages of UK environmental law":

• industrialisation: public health and pollution
• after World War II: planning
• late 20th century: sustainable development, internationalisation and neoliberalism
• 21st century: democracy, devolution and decarbonisation

Though I'm not sure I would agree with his claim that "industrial pollution and sanitation were easy victories with straightforward win–win solutions that often enjoyed broad political support", the piece is a concise and thoughtful survey and analysis of the subject.

The Valencian water court

The Bulletin for Spanish and Portuguese Historical Studies has posted "Water as a Collective Responsibility: The Tribunal de las Aguas and the Valencian Community", by Julia Hudson-Richards and Cynthia Gonzales. (Thanks to Lior Ben David for bringing it to my attention.) The abstract:

Bernardo Ferrándiz, Tribunal de las Aguas (1865)

The Tribunal today

In this article, we argue that the Tribunal de las Aguas, historically part of a larger complex of irrigation communities, provides a foundation for an alternative model of water management, and has survived for over a thousand years precisely because it answers the community’s needs, and contributes to Valencian regional identity. As research has recently shown in African cases, providing education, infrastructure, and management opportunities to local communities helps to encourage both sustainability and direct involvement in water distribution, contrary to the impersonal distribution characteristic of privatized systems. The Tribunal de las Aguas has transcended tremendous political, social, and economic change in Spain in general, and Valencia in particular, and remains an important facet of local identity. As water issues become more and more pressing in the face of climate change, pollution, and seemingly insatiable demand, we will need to find more creative and innovative ways to address the often conflicting demands on this most valuable resource. Furthermore, the gendered aspects of water rights and distribution continue to play such a significant role in our global water cultures, and our article will contribute to a larger discussion of women’s roles in irrigation and water use in different historical contexts.

Regulation of the commons in early modern Germany

The latest Environment and History has a very interesting article by Paul Warde, "Imposition, Emulation and Adaptation: Regulatory Regimes in the Commons of Early Modern Germany". There seems to be a quite substantial German-language literature on early modern commons and police regulations, two topics that should be of great interest to those interested in the interactions of law with the environment in history, and Warde's article, among its other virtues, gives Anglophone readers a taste of the field.