Clean Air Act turns 50

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

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

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

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

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

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

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

The Wild and Scenic Rivers Act at 50

John Day River, Oregon

Michael Blumm and Max Yoklic recently posted "The Wild and Scenic Rivers Act at 50: Overlooked Watershed Protection". The abstract:

The Wild and Scenic Rivers Act (WSRA) marked its fiftieth anniversary in 2018 without much fanfare. The WSRA has been somewhat overshadowed by the Wilderness Act, which preceded it by four years, and by the National Environmental Policy Act and the pollution control statutes which followed in the 1970s. But the WSRA was a significant conservation achievement, has now extended its protections to over 200 rivers, and has the potential to provide watershed protection to many more in the future. This article explains the statute and its implementation over the last half-century as well as a number of challenges to fulfilling its laudable goals of protecting free-flowing rivers, their water quality, and their “outstandingly remarkable values.” We make a number of suggestions to the managing agencies and to Congress if the WSRA’s achievements over the next half-century are to match the last fifty years, including reviving congressional interest in study rivers, updating managing agencies’ river plans to focus on non-federal lands within river corridors, and ensuring that those river plans provide the watershed protection Congress envisioned when it included a significant amount of riparian land within WSRA river corridors. We also call for a new emphasis on rivers that should be studied for their restoration potential and for more states to take advantage of the statute’s unusual pathway for state-designated rivers to gain WSRA protections.

The US Wild & Scenic Rivers Act turns 50

Richard Frank recently posted at Legal Planet on the 50th anniversary of the enactment of the US Wild and Scenic Rivers Act. Some excerpts:

1968 was an especially tumultuous year in modern American history.  The nation endured the assassinations of both Martin Luther King, Jr. and Robert F. Kennedy; then-President Lyndon Johnson announced he would not seek reelection due to growing public dissatisfaction with the government’s conduct of the Vietnam War; and protests and riots consumed Chicago, Detroit, Washington, D.C. and many other American cities.

So it was in stark contrast and a most welcome development when in 1968 Congress passed, and (in October of that year) a lame duck President Johnson signed into law the Wild and Scenic Rivers Act....  The Act represented a major political and conservation achievement 50 years ago.  It remains an important cornerstone of America’s conservation efforts a half century later.

*****

Under the WSRA, rivers are classified as wild, scenic or recreational.  Wild River Areas are those that are free of dams and generally inaccessible except by trails, with watersheds or shorelines essentially primitive and waters unpolluted.  Scenic River Areas are those free of dams and with shorelines and watersheds still largely primitive and undeveloped, but accessible by roads.  Recreational River Areas are readily accessible by road or rail, that may have some development along their shoreline, and that may have undergone past dams and diversions.  Regardless of their classification, each river in the National Wild and Scenic Rivers System is administered with the goal of protecting and enhancing the values that caused it to be designated in the first place.

The WSRA, authored by Senator Frank Church (D-Idaho), was a legislative response to the fact that in 1968, many if not most of America’s rivers were already dammed for hydroelectric and flood control projects.  (By comparison to rivers designated under the WSRA, more than 75,000 large dams in the U.S. have modified over 600,000 miles of American rivers.) 

The Torrey Canyon spill

It's 50 years since the Torrey Canyon oil spill off the coast of Cornwall, one of the worst oil spills ever. The disaster led to a series of dramas, not only oil slicks and dead wildlife, but (partly ineffective) bombings of the wreck by the British military, and the following legal drama (as reported by Wikipedia):

Claims were made by the British and French governments against the owners of the vessel and the subsequent settlement was the largest ever in marine history for an oil claim. The British government was able to serve its writ against the owners only by arresting the Torrey Canyon's sister ship, the Lake Palourde, when she put in for provisions at Singapore, four months after the oil spill. A young British lawyer, Anthony O'Connor, from a Singaporean law firm, Drew & Napier, was deputised to arrest the ship on behalf of the British government by attaching a writ to its mast. O'Connor was able to board the ship and serve the writ as the ship's crew thought he was a whisky salesman. The French government, alerted to the Lake Palourde's presence, pursued the ship with motor boats, but crew were unable to board and serve their writ.

More importantly, the disaster led to a series of changes in international law, as told by the International Maritime Organization, including amendment of the International Convention for the Prevention of Pollution of the Sea by Oil and adoption of the International Convention for the Prevention of Pollution from Ships.

The spill also led to early legal scholarship on environmental law, including Albert Utton's 1968 "Protective Measures and the 'Torrey Canyon'" and Colorado water law scholar Ved Nanda's "The Torrey Canyon Disaster: Some Legal Aspects".

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)

Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:

At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”

Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:

The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying....

Zoning's 100th anniversary

To mark the 100th anniversary of what New York's 1916 zoning ordinance, arguably the world's first, yesterday's New York Times carried an article by David Dunlap, "Zoning Arrived 100 Years Ago. It Changed New York City Forever." The article argues that it was not the completion in 1915 of the Equitable Building, taking up a whole city block, without setbacks, that was responsible for enactment of the law, as agitation for such regulation had been brewing for some time:

“The time has come when effort should be made to regulate the height, size and arrangement of buildings,” George McAneny, the borough president of Manhattan, declared in a 1913 measure establishing what amounted to a zoning committee.

Regulations, he wrote, were needed “to arrest the seriously increasing evil of the shutting off of light and air from other buildings and from the public streets, to prevent unwholesome and dangerous congestion both in living conditions and in street and transit traffic, and to reduce the hazards of fire and peril to life.”

*****

He and Edward M. Bassett were the chief architects of the 1916 Zoning Resolution.

Under its rules, buildings in strictly residential zones were permitted to rise only as high as the streets in front of them were wide; a ratio of one to one, put another way. (Side streets in Manhattan are typically 60 feet wide.)

These “1” zones cover most of the oversized maps in a portfolio titled, “Height / July 25, 1916,” that the City Planning Department still keeps. They are relics now, since the 1916 Zoning Resolution was superseded in 1961.

Also visible on the maps are “1¼” zones, “1½” zones, “2” zones and, in Lower Manhattan, a “2½” zone, where buildings could rise without setback for two and a half times the width of the street that they fronted. 

Carl Weisbrod, is the director of the City Planning Department and chairman of the City Planning Commission, is quoted as crediting the ordinance's authors with creating 

a revolutionary document couched in accepted common-law and constitutional doctrines: that landowners are not entirely free to create nuisances to those around them; and that local governments may police conduct in the name of public health, safety and welfare. 

“So much of this was to get the courts to feel comfortable that this was a natural and obvious use of the police power,” Mr. Weisbrod said, “when what it really was a dramatic change.” 

Water law, Ibsen, and Flint, Michigan

Jim Salzman recently posted "Lessons from Flint" at Legal Planet, giving us some historical (and literary) perspective. An excerpt:

A public-minded researcher discovers serious contamination of drinking water. His efforts to alert local officials are rebuffed. Concerned over how this will affect their reputation and the town’s economy, the authorities sit on the evidence and deny any problems. All the while, trusting people continue to drink unsafe water.

While the setting may call to mind recent events in Flint, Michigan, this is actually the plot from Henrik Ibsen’s classic 1882 play, An Enemy of the People. The places and dates have changed, but the challenges of providing drinking water remain. Just how safe really is our water and how can we make it safer?

Édouard Vuillard, An Enemy of the People, program for Théâtre de l'Œuvre, November 1893

We marked the fortieth anniversary of the Safe Drinking Water Act in 2014. In many respects, it was a date well worth celebrating. Most Americans take tap water for granted. We enjoy some of the safest and most reliable drinking water in the world. More than 90 percent of customers receive water that meets all standards all the time. This is a far cry from a century ago, when waterborne illnesses and deaths were commonplace. The famed aviator brother, Wilbur Wright, died of typhoid in 1914. The 1916 polio epidemic required quarantines in New York City, where 9,000 cases were reported. Today, these and other waterborne diseases have virtually disappeared in America. Glass half full.

Yet the glass remains half empty. Just ask the residents in Charlestown, West Virginia, where two years ago a chemical spill shut down water supplies, or in Toledo, Ohio, where seven months later an algal bloom closed their water system. The threats in those cases were due to causes beyond the reach of the Safe Drinking Water Act – a breach in a chemical storage tank atop a river bank in Charlestown, and excessive nutrients from agriculture flowing into Lake Erie in Toledo. These incidents made clear that action to ensure safe drinking water needs to start well upstream of the water treatment plant.

The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

Update: the published papers from this conference are available here

A call for papers for a conference and journal issue I'm organizing, with the help of my distinguished teacher, Carol Rose. Please pass it on!

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50^th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law

with the support of

David Berg Foundation Institute for Law and History

GlobalTrust: Sovereigns as Trustees of Humanity

S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law

Tel Aviv University

June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 

One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

Accommodations in Tel Aviv will be provided by TAU, and participants will have their reasonable travel expenses reimbursed.

Timing:

• One-page abstracts accompanied by a brief c.v. should be sent to cegla@post.tau.ac.il by 1 March 2016.
• Notices of acceptance will be sent by 1 April 2016.
• In order to allow pre-circulation and preparation of comments, draft articles will be due by the end of May 2017.
• The conference will take place in Tel Aviv June 28-30, 2017.
• Final drafts will be due by the end of August 2017.
• After peer review and editing, the special issue of Theoretical Inquiries in Law will be published in July 2018.

Nahalal collective village, Israel (c. 1930?)

Oliver Wendell Holmes and water pollution

Yesterday's edition of This Day in Water History notes the anniversary of a historic interstate lawsuit over water pollution, Missouri v Illinois (1906). See my own take after the jump.

January 17, 1900: Fifteen days after Chicago opened the Sanitary and Ship Canal and reversed the course of the Chicago River to discharge sewage into the Mississippi River, Missouri sued Illinois, “…praying for an injunction against the defendants from draining into Mississippi River the sewage and drainage of said sanitary district by way of the Chicago drainage canal and the channels of Desplaines and Illinois river.”

The Bill of Complaint alleged in part:

“That if such plan is carried out it will cause such sewage matter to flow into Mississippi River past the homes and waterworks systems of the inhabitants of the complainant…

That the amount of such undefecated [huh?] sewage matter would be about 1,500 tons daily, and that it will poison the waters of the Mississippi and render them unfit for domestic use, amounting to a direct and continuing nuisance that will endanger the health and lives and irreparably injure the business interests of inhabitants of the complainant…

That the water of the canal had destroyed the value of the water of the Mississippi for drinking and domestic purposes, and had caused much sickness to persons living along the banks of said river in the State of Missouri.”

The opinion in the case was written by Supreme Court Justice, Oliver Wendell Holmes and read in part:

“The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit to he inferred from experiments with floats is estimated at varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged by the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides.”

Commentary: In effect, Justice Holmes ruled in favor of Chicago. The experts for St. Louis had failed to prove their case.

Reference: Leighton, Marshall O. 1907. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, D.C.: U.S. Government Printing Office.

Garrett Hobart

According to Michael McGuire at This Day in Water History, today is the 116th anniversary of US Vice President Garrett Hobart's death. McGuire writes:

While much is known about Hobart’s role as vice president (1897-99), his role in the formation of private water companies and his support of these companies through legislation is less well known. Hobart was elected to the New Jersey Assembly and Senate during the early part of his career. During the 1870s and 1880s there was a lot of legislative activity that appeared to be for the benefit of private water companies.

In 1881, one bill that was introduced by Garret A. Hobart, then a state senator, was designed to give private water companies the power to acquire and distribute water resources independent of municipal or state control.  While not explicitly stated, the bill purportedly had a single intention of giving one company, the Passaic Water Company, more power to access water supplies to prevent water shortages at the factories of Paterson which were forced to idle production in the summer season.

The bill was not successful, which was undoubtedly due in part to the widespread suspicion that the bill would grant powers to companies to export New Jersey water supplies to New York.  “[New York speculators] have been attracted by the magnificence and extent of New Jersey’s water-shed, and by the sweetness and purity of its waters.  Last year’s scheme was said to be intended to enable the tapping of New Jersey’s hills for the New York supply.”

Hobart was a resident of Paterson, New Jersey for most of his life. In 1885, Garret A. Hobart joined the Board of the Passaic Water Company and two years later was elected President of the Company.  Hobart was described in one source as representing a syndicate of New York capitalists. The company had been supplying Paterson and the surrounding area since 1857.

The East Jersey Water Company was formed on August 1, 1889 for the stated purpose of supplying Newark, New Jersey with a safe water supply.  All of the men who were shareholders of the new company (including Hobart) were identified with the Lehigh Valley Railroad Company. However, the company’s vision extended far beyond a water supply for Newark. The company began as a confidential syndicate composed of businessmen who were interested in executing grand plans for water supply in northern New Jersey and New York City. Nothing came of these grand plans.

For more, including omitted citations, see the blog.

The common cup

The blog This Day in Water History notes that today is the 105th anniversary of the abolition of the "common cup" by New York State. The blog explains:

November 15, 1910:  New York Times headline—Would Abolish Common Cup. “Albany, Nov. 15—“There is no excuse for a public drinking cup, on the train or anywhere else, now that penny-in-the-slot machines serve out paper cups and that metal collapsible cups can be purchased for a dime,” says a circular sent out by the State Department of Health. The Health Department is co-operating with the railroads to do away with the public drinking cup on trains and in railroad stations. It is stated that there is great possibility of the transmission of disease by the use of the common drinking cup….”
Commentary:  On October 30, 2012, we observed the 100th anniversary of the first drinking water regulation, which was adopted by the U.S. Treasury Department that prohibited the use of the common drinking cup on interstate carriers. Individual states like New York and Kansas led the way by raising awareness of this serious public health problem. Seven articles in my blog safedrinkingwaterdotcom provided a countdown to the anniversary date.

Click through to the October 29 post for a more extensive history.

Magna Carta and the environment

King John hunting, from Statutes of England (14th century)

Much has been written recently on Magna Carta, now celebrating its 800th anniversary. Jill Lepore's piece at the New Yorker is good; the best is still Tony Hancock's 1959 take.

I was fortunate to attend the recent British Legal History Conference at the University of Reading, as part of which we made an excursion to the meadow at Runnymede where King John signed Magna Carta. The first environmental element in this story is a monument that was never erected at Runnymede, planned to honor William III. Apparently the reason it was not built was that the soft ground of the meadow would not have been able to support it.

William Thomas, Design for a column with a statue of William III
intended to be erected at Runnymede (British Library)

Given the design, we should be thankful for that environmental constraint, but, as usual, the environment didn't get in the way of good ole American ingenuity. Runnymede is now a silly place, with a lot of memorials set up by Americans; the central one, erected by the American Bar Association, looks like a World War II memorial:

American donors also got some very classy plaques:

And the main British contribution to the site just might be a joke:

But enough about Runnymede. Magna Carta itself (here's an accessible English translation) has very little on liberty or what we would think of today as major constitutional issues, and a lot of esoteric clauses ranging from the colorful to the weird to the upsetting. And quite a bit on environmental-legal issues. Take clause 33: "All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." As Nicholas Vincent explains at the British Library's website, what's at issue here is the free navigation, or the public trust as we might call it today.

More on Mono Lake

Mono Lake continues to inspire scholarship, with Erin Ryan recently posting "The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Ct.". The abstract:

This article tells the epic tale of the fall and rise of Mono Lake — the strange and beautiful Dead Sea of California — which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India. 

Mono Lake (BPG)

The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Audubon Society decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board’s ultimate decision to save it, the Mono Lake story is especially worth revisiting.

Drinking water regulation

Slate recently published a piece by James Salzman marking the 40th anniversary of the US Safe Drinking Water Act. Salzman writes:

Prior to the understanding of germ theory in the late 19th century and realization of the dangers bacteria posed, cholera and typhoid epidemics were commonplace and little-understood. The practice of chlorination, introduced to America by the water supplier for Jersey City in 1908, eradicated these threats within decades. Ironically, Jersey City actually sued the water company, arguing that the older system of sand filtration was needed to provide the pure and wholesome water required in the supply contract. The judge decided in favor of progress, finding for the company. The New York Times report of the decision was remarkably prescient about the importance of chlorination: “so successful has been this experiment that any municipal water plant, no matter how large, can be made as pure as mountain spring water.” Written a century ago, it almost reads like an ad for bottled water today.

The first standards for drinking water in America were developed by the Public Health Service in 1914, two years after the famed aviation brother Wilbur Wright died of typhoid. The federal standards addressed bacteriological threats, but the PHS’ powers were limited, so the standards applied only to interstate common carriers such as trains, buses, and ships. Water providers to these carriers had to use chlorination, and this soon covered all the major cities.

The PHS standards were neither comprehensive nor revised very often. Rachel Carson’s Silent Spring heightened the country’s consciousness about pesticides and chemicals, and advances in science revealed whole classes of dangerous viruses, but only 28 of these contaminants were covered when Carson’s book was published in 1962. And even where there were federal standards, there was scant implementation. By 1970, the PHS standards directly applied to just 650 out of the nation’s 35,000 public water suppliers. Only 14 states had adopted the standards for themselves. 

Mono Lake at 20

A favorite of environmentalists, environmental law professors, and students is the California Supreme Court's 1983 decision in the Mono Lake Case, applying the public trust doctrine in a particularly emphatic way on the side of ecological values. Anyone who's read the case knows that the court didn't apply the trust in a strong, "property" sort of way, but rather sent the issue back to the administrative agency to reconsider diversions from the lake, giving due weight to the values protected by the trust. So what actually happened afterwards?

On November 17 Berkeley Law will be holding a symposium on the issue, "Mono Lake at 20: Past, Present and Future". Note that the "20" is not since the famous court decision, but the 20th anniversary of the ensuing State Water Resources Control Board’s Decision 1631. Michael Kiparsky explains at Legal Planet:

In 1983 the California Supreme Court directed the SWRCB to amend Los Angeles Department of Water and Power’s water rights to protect Mono Lake and its tributary creeks. In 1994, the SWRCB issued Decision 1631, its landmark decision in the Mono Lake Cases. The decision was the first in the state’s history to integrate the Water Code, Fish and Game Code, and the common law of public trust, to achieve such a result.

The symposium will address a number of fundamental questions. What are the actual results of implementation of D-1631? What does the decision mean for other water rights, as the State Water Board seeks to determine how best to protect public trust uses of the Delta and Central Valley rivers....

This effort will extend the academic symposia at UC Davis in 1980 and 2011 in several intentional ways. Building on the doctrinal syntheses of the Public Trust Doctrine developed by the scholars at UC Davis, we will seek to move from problem definition towards solutions statements. The symposium will do so by bringing together panelists from multiple perspectives to distill lessons learned from twenty years of concerted effort, placing them in the context of institutional, fiscal, and ecological realities.

Ownership of natural resources in the Third World

Tomorrow is the 41st anniversary of the Chilean coup d'état in which a military junta with Augusto Pinochet at its head overthrew the government of Salvador Allende. A while back Chris Dietrich had a very interesting post on Imperial & Global Forum in which he explored the motivations behind the vehement American opposition to Allende's regime. Some selections:

“Allende was assassinated for nationalizing the . . . wealth of Chilean subsoil,” Pablo Neruda wrote on September 14, 1973. Neruda was lamenting the overthrow and death of his friend, Chilean President Salvador Allende, a week before he himself succumbed to cancer.  “From the salt-peter deserts, the underwater coal mines, and the terrible heights where copper is extracted through inhuman work by the hands of my people, a liberating movement of great magnitude arose,” he continued.  “This movement led a man named Salvador Allende to the presidency of Chile, to undertake reforms and measures of justice that could not be postponed, to rescue our national wealth from foreign clutches.”  Unfortunately, Allende’s flirtation with economic nationalization ran up against the country’s multinational business interests, particularly those that had support from the U.S. government. His socialist reforms were also ill timed; the U.S. government’s ideological view towards the global economy tended towards the Manichean. 

The background to the Wilderness Act

The 50th anniversary of the US Wilderness Act of 1964 continues to spark interest. H-Environment recently posted a review by Sarah Mittlefehldt of The Wilderness Writings of Howard Zahniser, edited by Mark Harvey (Univeristy of Washington Press, 2014). Mittlefehldt writes:

These carefully selected writings demonstrate the power of the written word to turn ideals into policy, and ultimately, to turn policy into protected landscapes. Zahniser’s prophetic devotion to wilderness and his strong, skillful prose helped to codify a lofty vision and to successfully navigate a complicated political arena. These linguistic and political acrobatics ultimately yielded the 1964 Wilderness Act, the country’s strongest legal mechanism for protecting wild places.

*****

Several environmental historians have recently explored the impact that public designation has had on people who worked or lived in protected areas like national parks and federal wilderness areas, and although Harvey includes passages in which Zahniser spoke about the need for federal control, one wonders if he had  more to say about the local politics of wilderness designation. From the selections, it is clear that Zahniser believed that local and state officials were more vulnerable to the forces that threatened wilderness, and he frequently invoked the utilitarian language of wilderness being for all to enjoy—including both present and future generations. But what about those who lived in or near protected areas? Although the style and spirit of Zahniser’s writing often echoed that of civil rights advocates in the 1950s and ‘60s (perhaps a reflection of his upbringing as the son and nephew of Free Methodist ministers), his attitudes and thoughts about social justice issues, specifically in regard to federally designated wilderness areas, are left unexplored. Perhaps that is terrain for some future historian. 

The Yosemite Grant Act

Holly Doremus at Legal Planet reminds us that last week was the 150th anniversary of the signing of the Yosemite Grant Act.

Doremus writes that the law was

one of the first tangible expressions of the national park impulse. The Act granted Yosemite Valley and the Mariposa Grove of giant sequoias to the state of California on the condition that they be held forever “for public use, resort, and recreation.” The idea behind the grant, of course, was that some parts of the public domain should not be turned over to private profit or monopoly, but rather should be available to all and preserved for the public benefit. In 1905 California receded Yosemite Valley to the United States, and it became the heart of a much larger national park which today is one of the icons of the national park system.

Wilderness Act at 50

Lewis & Clark Law School has posted the papers and presentations, along with recordings of the sessions, from its recent "Wilderness Act at 50" symposium. Presentations include Robert Glicksman, "Why The Forest Service and the BLM Have Different Wilderness Management Histories" and John Concillo, "Liberty & Wilderness: William O. Douglas Film Project".

North Cascades National Park

The program and links are here. More on the anniversary here.

100th anniversary of the Raker Act

Over at Legal Planet, Richard Frank writes:

December 19th marks a sad event in American environmental history.  It was 100 years ago today that President Woodrow Wilson signed the Raker Act, authorizing the City of San Francisco to build a dam that would flood the Hetch Hetchy Valley in Yosemite National Park in order to deliver water supplies to San Francisco.

Albert Bierstadt, Hetch Hetchy Canyon (1875)

Contemporary accounts–including those of John Muir–attest to the stunning beauty of the Hetch Hetchy Valley. (Muir wrote: “Hetch Hetchy Valley is a grand landscape garden, one of Nature’s rarest and most precious mountain temples.”)  In its natural state, Hetch Hetchy was considered an ecological twin of the world-renown Yosemite Valley that lies, relatively undisturbed, a few miles to the south.

San Francisco’s construction of the O’Shaughnessy Dam on the Tuolumne River flooded the Hetch Hetchy Valley under 300 feet of water, turning it into a municipal reservoir. Public access to this portion of Yosemite National Park has been limited for decades and, compared to its natural state, there’s not a lot see or enjoy there in any event.  John Muir considered the destruction of the Hetch Hetchy Valley to be his biggest political failure, and a national tragedy. 

Frank goes on to discuss current debates about whether the dam should be dismantled and Hetch Hetchy restored.