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:

Carbon dioxide as an air pollutant

More on the co-production of environmental science and law: Just out in Environment and History is an article by Ashton Macfarlane, "The Many Pollutant Identities of Carbon Dioxide: Global Climate Monitoring and Air Pollution Research in New Zealand, 1968–1975", that discusses the way carbon dioxide was framed as an air pollutant due to the modern air pollution statutes of the 1960s and '70s. The abstract:

In the late 1960s, New Zealand and the United States collaborated to establish a southern hemispheric carbon dioxide (CO2) monitoring station on New Zealand’s coastal cliffs. The New Zealand CO2 Project, as it came to be known, is an underappreciated landmark in the history of environmental monitoring. The archival record of its early years reveals the extent to which efforts to measure atmospheric carbon dioxide concentrations interacted closely with one of the most hotly debated political issues of the mid-twentieth century: urban air pollution. The designation of CO2 as air pollution on a planetary scale had profound legal implications in an era in which clean air legislation increasingly brought air pollution within the scope of governmental regulation, and administrative agencies began to jostle for control of the monitoring enterprise. The precise nature of CO2 as an air pollutant, however, was difficult to pin down. In these initial years of concerted carbon dioxide monitoring, when the lines between climate science and air pollution research were still blurred, CO2 developed its many pollutant identities. The nature of these identities – and the ways in which scientists and science administrators negotiated their boundaries – retain their relevance today, as nations continue to link air pollution and climate legislation in the twenty-first century.

NIWA's Baring Head monitoring station (Dave Allen)

National security and climate change

The National Security Archive project recently posted "National Security and Climate Change: Behind the U.S. Pursuit of Military Exemptions to the Kyoto Protocol", a collection of internal papers and accompanying detailed commentary. Burkely Hermann writes:

Journalists and commentators have argued lobbying by the United States meant that the Kyoto Protocol gave militaries a large exemption from emissions targets and standards. However, the documents tell a different story, of exemptions which were not as wide as the Pentagon or critics of the agreement would have liked. These provisions exempted emissions from international operations authorized by the United Nations or those described as in accordance with the UN Charter, and bunker fuels from being added to national emissions totals.

*****

On December 11, 1997, the same day the Kyoto Protocol was adopted, the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties released a decision which enshrined the exemptions within the treaty itself. The decision stated that emissions “based upon fuel sold to ships or aircraft engaged in international transport,” i.e., bunker fuels, should not be part of national totals. It was further decided that emissions from multilateral operations following the United Nations Charter would not be included in national emissions totals but would be “reported separately”. 

There's lots more detail, including 27 archival documents and scores of links to other sources. The project's website also has many other documents and essays on other aspects of climate change treaty negotiations.

Confidential State Dept. cable, October 26, 1997

Climate in the American legal academy

A recent post by Dan Farber at Legal Planet discussed the issue of when climate awareness began to enter American law. 

In "The Origins of Climate Awareness in the Legal Academy", Farber writes:

The earliest clear references to climate change that turned up in my search... were in 1978 articles about nuclear energy. The most notable was by an administrative law professor at Harvard, one Stephen Breyer. Now-Justice Breyer argued that it was misleading to consider the environmental impact of nuclear power without also considering the impact of alternatives such as coal. In particular, he said, “reliance upon coal, on the other hand, could aggravate the ‘greenhouse effect,’ whereby excess carbon dioxide (which accompanies coal burning) traps heat inside the earth’s atmosphere, thus possibly melting the icecaps and raising the level of the oceans.” He apparently viewed this as a speculative concern, however, since he immediately added that coal “more realistically” could cause harm to coal miners and other health effects. The other article about nuclear power also observed in passing that “coal combustion may disrupt global weather patterns by increasing the amount of carbon dioxide in the atmosphere, creating a ‘greenhouse effect.’”

***** 

In another article, Herbert Taubenfeld recounted that:

“In 1980, when I spent the summer with the International Division of the EPA, I did an exercise in ‘forward drafting.’ I tried to draft an international treaty limiting the production by all methods of carbon dioxide (to control the global warming trends caused by increasing levels of carbon dioxide) and limiting the production of chlorofluorocarbons (in particular, limit the production of freon, which is the most important element used in refrigeration and air conditioning processes).”

*****

Edith Brown Weiss

A 1981 article by Edith Brown Weiss provided the most thorough (as well as thoughtful) treatment of the climate change issue.... Given the higher level of scientific uncertainty forty years ago, Brown called for consideration of a series of measures, including requiring environmental impact statements to include CO2 emissions, removal of CO2 from smokestacks, and limits on the use of coal. She also called for international consultations and for strategies to deal with deforestation.  Given the uncertainties, however, she said that the issue “should not be pushed into high-level political debates that would cause countries to adopt premature positions based on inconclusive premises and embedded in national political rhetoric.”

I suspect that there were several reasons why legal academics failed to focus more on climate change in this early period. First, the problem was more remote forty years ago than it is today. There was also much more scientific uncertainty about the magnitude of warming and its impacts than there is today. Second, there weren’t any legal developments to talk about, with the first UN treaty 7-10 years in the future. Third, there was so much else going on in environmental law. For instance, Weiss wrote the year after the Superfund law was passed and barely a decade after the Clean Air Act went into effect.

Whatever the reason, legal scholarship seems in retrospect to have been a bit slow to focus on the issue of climate change.  With a few exceptions, legal academia cannot claim much credit for foreseeing how large the issue would loom in the future (now).

Heinzerling on Lazarus

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

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

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

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

*****

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

There's lots more here - worth reading. 

Economic theory and climate policy

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

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

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

Climate change and the US Clean Air Act

President Nixon signs the Clean Air Act of 1970

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

The article goes on to argue that

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

*****

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

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

Cow trials and climate change

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

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

Yom Kippur, Maimonides and greenhouse gas regulation

Tonight and tomorrow are the Jewish High Holiday of Yom Kippur, the Day of Atonement. In a recent debate about Israeli climate change policy my colleague at TAU, Pinchas Alpert, invoked a seasonal analogy based on a passage from Maimonides, the great medieval Jewish jurist and philosopher.

An article by Nadav Feldman in The Marker Magazine (in Hebrew) quotes an Israeli religious neoliberal blogger (yes, that American combination has recently reached Israel, thanks to American funding) as arguing that Israel should not take any regulatory action against greenhouse gas emissions. His lead argument is that Israel's contribution to global emissions is but a small proportion of global emissions, so any action taken by Israel will impose local costs without bringing about any benefit.

In response, Alpert, a climate scientist, points to a passage from Maimonides's Laws of Repentance, which many Jews study this time of year. Maimonides writes (3:4, transl. Eliyahu Touger):

Maimonides

A person should always look at himself as equally balanced between merit and sin and the world as equally balanced between merit and sin. If he performs one sin, he tips his balance and that of the entire world to the side of guilt and brings destruction upon himself.

[On the other hand,] if he performs one mitzvah, he tips his balance and that of the entire world to the side of merit and brings deliverance and salvation to himself and others. This is implied by [Proverbs 10:25] "A righteous man is the foundation of the world," i.e., he who acted righteously, tipped the balance of the entire world to merit and saved it.

So, too, for environmental issues such as climate change, argues Alpert, every person's contribution to the problem or its solution is decisive, and we each need to see ourselves as responsible for our current predicament.

May we all be sealed in the book of life.

Climate science, history, and the law

Bill Kovarik recently posted at "Environmental history timeline" on a lawsuit against Exxon-Mobil, raising some interesting questions. Some highlights:

The lawsuit is based in part on an investigation by the Center for International Environmental Law which accused Exxon-Mobil Oil Corp. of working to dismiss climate change science and political action despite having had a scientific understanding of climate change “as early as” three or four decades ago, (or sometimes 1977, or 1968). The research grew into an “Exxon Knew” campaign. It was greeted with enthusiasm by environmentalists like Al Gore and Bill McKibben and with skepticism by Independent Petroleum Association of America and by Exxon-Mobil itself.

The key issue seems to be when Exxon knew climate change involved C02 from fossil fuels. Many of the Exxon Knew stories start along these lines: “In the 1960s, the American Petroleum Institute (and / or Exxon) made a troubling discovery.”

From an historical standpoint, the question ought to involve the broader context of scientific research. If API and Exxon researchers knew about climate change, what about the rest of the engineering and scientific community?

The fact is that the topic was a constant source of concern and research across the related scientific communities for a century and a half. Scientists concerned with climatology and glaciology and many associated geophysical sciences have studied climate change for generations. 

As seen here, the Washington Post carried an article May 4, 1953 on a Gilbert Plass paper at American Geophysical Union, quoting him specifically pointing to fossil fuel use as increasing climate warming.  Plass and other climatologists regularly published on these and related topics, with much of that generation’s research converged in the International Geophysical Year (1957-58).

Kovarik goes on to discuss many other scientists and others who warned about greenhouse gas induced climate change beginning in 1856.

So, clearly, Exxon knew, but so did everyone else.

In confining the discussion to Exxon’s own knowledge and actions, for example in a series of Inside Climate News articles, we have a legal strategy rather than an appreciation for the history of science. When we say “Exxon knew” as early as the 1970s or 80s, we ignore the long trail of scientific discovery beforehand, and we leave the field open to highly selective interpretations of trends.

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:

This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.

Thomas Malthus

Law and environmental-technological change

Construction crane at Norris Dam (TVA) (Currents of Change)

Yesterday's New York Times had a piece by Naomi Oreskes and Erik Conway on the need for government help in making the technological transformations necessary to avert disastrous climate change - in particular, phasing out fossil fuels by the year 2050. They write:

None of the major technological transformations of the 19th and 20th centuries were the product of the private sector acting alone and responding only to the market. Railroads, radio, telegraph, telephone, electricity and the internet were all the result of public-private partnerships. None was delivered by the “invisible hand” of the marketplace. All involved significant interventions by the visible hand of government.

What does this mean for us? Right now, government is widely seen as inefficient and ineffective, and our needs are thought to be best addressed by the private sector, through entrepreneurship, venture capital and Silicon Valley-style “disruption.” But unless we acknowledge the need for a substantial government role, we are going to be stuck, because change driven solely by the marketplace is unlikely to suffice.

Some might object that our current challenge is vastly different from those met by past technological changes, because we’re not just talking about a thing, like a radio or cellphone, but about changing our entire energy system. But these earlier transformations involved systems, too. Just as energy technology isn’t one thing, neither were the railroads, radio, electricity or the internet. Those systems all involved many parts, including federal, state and local policies to support them (the land grants that made the railroads possible, for instance, or role of the Federal Trade Commission in licensing radio and television stations). 

Conference report: CARB's 50th Anniversary

UC Davis recently hosted a conference marking the 50th anniversary of the California Air Resources Board. Richard Frank reports at Legal Planet:

CARB convened for the first time in January 1968, following enabling legislation prompted by the chronic, crippling smog that enveloped Southern California, its residents and economy in the 1950’s and `60’s.  The Board quickly became a national and international leader in air pollution regulatory strategy and pollution control technologies for stationary and vehicular sources alike.  That leadership was reflected in the 1970 Clean Air Act, when Congress granted California–alone among the states–the authority to adopt vehicle emission standards more stringent than those promulgated by the federal government.  (Attendees were reminded at the “CARB at 50” conference that this longstanding federal deference to California auto emission standards is due in large part to strong and successful lobbying by then-California Republican Governor Ronald Reagan.) 

*****

The California Air Resources Board has achieved a truly remarkable record of success over the past half century.  California’s air quality today is roughly 95% better than it was when the Board first convened in 1968.  Air pollution control technologies pioneered by CARB in California have been replicated nationally and internationally.  In 2004, CARB enacted the world’s first GHG emission reduction standards for motor vehicles, which was only the start of a multitude of innovative and successful Board regulatory strategies to address the overarching environmental challenge of our time–climate change.  And, last but not least, CARB demonstrated that it is a regulator with considerable bite when the occasion requires it–as the Board amply demonstrated in responding to Volkswagen’s fraudulent “gaming” of emissions control systems in the diesel vehicles VW marketed in California and worldwide.

For more on Reagan the environmentalist see here.

The full conference proceedings are here.

California Air Resources Board’s 50th anniversary

From Legal Planet:

On Friday, January 19, 2018, the University of California, Davis, will host a major conference commemorating the California Air Resources Board’s 50th anniversary.  The conference represents a three-way partnership between UCD School of Law’s California Environmental Law and Policy Center, UCD’s Institute for Transportation Studies and CARB.

Since its creation in 1967, CARB has been a model of environmental stewardship, pollution control innovation and public service.  Years before passage of the federal Clean Air Act, CARB pioneered the nation’s first air pollution emission limits and pollution control technologies for motor vehicles—accomplishments that served as a model for the nation and the world.  More recently, CARB has led California’s multifaceted strategy to curb the state’s greenhouse gas emissions, again serving as both an inspiration and model for the global community.

The January 19th conference at UC Davis will both celebrate CARB’s past accomplishments and—at least as importantly—identify the challenges and opportunities that lie ahead for CARB in the next half century.  Featured speakers will include California Governor Jerry Brown, former USEPA Administrator Gina McCarthy and current CARB Chair Mary Nichols.  Also on the agenda is a diverse panel of “young visionaries” who will venture predictions on CARB’s future course and priorities.

Registration for the event is now open.  You can register here.

Trump, Carl Schmitt, and climate change denial

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt". Some excerpts:

We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes.

The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past.

*****

As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism.

In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era. 

*****

Two principles of Schmitt’s writing are especially relevant to understanding the place of climate change denial in Trumpism’s historical consciousness, and they’re worth discussing at some length. Each principle links Trumpian domestic and international politics as two sides of the same philosophical coin.

The political is inviolable

First, for Schmitt a community’s ability to draw the friend-enemy distinction can—by definition—brook no conceptual or institutional restraint.

Most notably, the distinction can’t be predicated on other domains of human value, such as morals, aesthetics, or economics. Ideals from these fields may be used to enhance public feelings of opposition. Enemies are regularly portrayed as ugly, for instance—a practice at which Trump personally excels.

But the object of a community’s political dissociation is made on the basis of criteria independent from judgments about good and evil, beauty and ugliness, or profit and loss.

Liberals today regularly violate this principle. They seek to circumscribe national sovereignty within generally-applicable legal norms such as individual human dignity—consider Article I of the German Basic Law—and to restrict it through institutions like the United Nations.

Schmitt views such liberal projects not simply as naïve, but also as a recipe for social chaos at home and unrestrained, imperialistic violence abroad. 

Postwar America's greatest environmentalist

More on working-class environmentalism and the law (see, most recently, here): Jacobin recently ran a piece by Connor Kilpatrick claiming that "Postwar America’s greatest environmentalist was a labor leader". There's a lot here also about politics, religion, climate skepticism and more. Some excerpts:

Today, the AFL-CIO lobbies Congress to pass the Keystone XL pipeline while noted NASA climate scientist James Hansen, one of the first to link global warming to fossil fuels, is repeatedly arrested for protesting such projects. And while in 2017, the idea that the interests between wonky environmentalists and jobs-focused trade unionists would diverge seems like common sense, it’s only because the bad guys won.

But it wasn’t a preordained victory. For nearly a decade in the 1960s and ’70s, environmentalism seemed to be on the cusp of a popular reckoning against the powers of capital. And it found an ally in the labor movement which, for a few years, looked like it might be able to not only cling to life but find a way back into the heart of American society.

[Tony] Mazzocchi and his union, the Oil, Chemical and Atomic Workers International (OCAW), were the primary muscle behind the 1970 Occupational Safety and Health Act (OSHA), signed into law by Richard Nixon. Looking back on that victory, which mobilized both labor and the burgeoning environmental movement, Mazzocchi said: “We have demonstrated that an unpopular idea can be generated into a powerful political program that’ll reignite the consciousness of the American people.”

Lessons from tobacco for the future of climate change liability

The law surrounding the health effects of tobacco are an important precedent for many environmental law issues (see here and here). Now Martin Olszynski, Sharon Mascher, and Meinhard Doelle recently posted "From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability". The abstract:

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation. 

The law and climate change under Reagan and Bush I

President Bush signs the UN Framework Convention on Climate Change in Rio, June 1992
(Source: UN)

It may seem like ancient history today, but a mere twenty-five years ago US Republicans supported climate change legislation and treaties, as Greg Dotson reminds us in a post at The Conversation:

In 1987, President Reagan signed the Global Climate Protection Act into law, giving the EPA the lead agency role in developing and proposing a “coordinated national policy on global climate change.”

In 1992, President George H. W. Bush negotiated the landmark climate treaty the United Nations Framework Convention on Climate Change. Upon reaching the agreement, Bush EPA Administrator Bill Reilly wrote that a number of EPA programs would play “a key role in enabling the United States to meet the goal of the Climate Change Convention: to cut greenhouse gas emissions using a benchmark of 1990 levels.” For example, EPA’s Green Light Program which Reilly had initiated in 1991 gave birth to the Energy Star program in 1992, a voluntary program that helps businesses and individuals protect the climate through energy efficiency.

When the U.S. Senate ratified the Framework Convention in 1992, Senator Mitch McConnell said it was “a fine agreement.” The EPA assumed the duty of preparing the official U.S. Inventory of Greenhouse Gas Emissions to comply with the nation’s commitments under the treaty.

More on conservatives and environmental regulation here and here.

The conservative as environmentalist

Though conservatism is today associated with anti-environmentalism (a trend with an interesting history); see also here and here), a growing body of work is digging into conservative and religious roots of American environmentalism. Last year we noted Dan Farber's post on American conservatism and environmentalism at Legal Planet; now comes the article: "The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century" (thanks to Dan Ernst at Legal History Blog for noting it). The abstract:

Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax.

This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil fuel industry. These forces may be abating, opening the door for a more vigorous debate about environmental policy within the conservative movement and in the broader public arena.

Lessons from environmental history

I recently came across Erik Podhora's "Lessons for Climate Change Reform from Environmental History: 19th Century Wildlife Protection and the 20th Century Environmental Movement", published in last year's Journal of Environmental Law and Litigation. The abstract:

The prospect of national climate change legislation currently seems dim, but protective legislation for the natural environment has not always been out of reach. State wildlife laws of the 19th century demonstrated that concerted action could persuade state legislatures to shift away from the fundamental paradigm of unregulated hunting when the declining populations of many species caused public alarm. Nearly a century later, in 1969, several high-profile incidences of acute pollution occurred, and a widespread environmental movement blossomed that prompted a previously indifferent President to champion the call for environmental policy. If this pattern held true, unusually strong storms or wildfires of increasing frequency and intensity in recent years should have generated public support for legislation to combat climate change. However, climate change reformers in the 21st century have not been able to convince Congress to seriously consider remedial legislation. This Article explores the factors that contributed to the success of the 19th century state wildlife movement and the 20th century environmental movement in order to better understand what climate change reform efforts may be missing.