More on the Clean Water Act at 50

Legal Planet's Richard Frank posted today on the US Clean Water Act's 50th birthday. An excerpt:

The CWA as enacted a half-century ago was enormously ambitious and, with the benefit of hindsight, quite naive: in the law’s legislative findings, Congress declared that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”  That obviously did not, and will not, happen.

Nevertheless, and with the possible exception of the Clean Air Act, no law enacted as part of the outpouring of federal environmental legislation in the 1970’s has proven more successful and transformational than the CWA.  The nation’s rivers, streams, lakes and ocean waters are dramatically cleaner and healthier than they were a half-century ago.

That’s primarily due to two key features of the CWA: first, a nationwide permit system designed to mandate aggressive application of pollution control technology to limit pollution from “point sources” such as factories and power plants.  The second feature is a massive infusion of federal funding to state and local governments to upgrade sewage treatment plants across America.

Another key element of the CWA is its incorporation of “environmental federalism” principles.  Subject to federal review and approval (and incentivized by generous federal funding), willing states were allowed to assume responsibility for administering and enforcing the CWA’s federal permit systems.  California was the first state to seek and obtain this delegation of federal CWA authority in 1972, and most–but not all–states have since done so as well.

Yet another important element of the CWA has been its incorporation of the principle of private enforcement.  In virtually all other nations, enforcement of water pollution control and other environmental laws is the sole responsibility of government regulators.  But the CWA authorizes and incentivizes private citizens and organizations to enforce the statute as well.  Today, the private enforcement model is replicated in many of the nation’s environmental laws.  But far more private enforcement actions are brought under the CWA than any other federal environmental statute.  And the number of private CWA enforcement lawsuits far exceeds those brought by federal and state regulators.

More on the history of the Clean Water Act here and here. 

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:

early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.

Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:

"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Digital library III: Compendium of Water Pollution Laws (1959)

This week's installment in the digital library of environmental law moves ahead to the twentieth century with Carl E. Geuther's Compendium of Water Pollution Laws, published in 1959 by the Manufacturing Chemists' Association, headquartered in Washington, DC. This was the fifth in a series of "Water Pollution Abatement Manuals" published by the trade organization, evidently with a target audience of engineers, managers, and other non-lawyer employees of the chemical industry.

Geuther, a lawyer, worked at the time for Du Pont Chemicals; he also seems to have represented them and other chemical companies in court at various times.

The Preface explains that the manual is:

a compendium of the laws of the forty-nine states (including the District of Columbia, the Territory of Hawaii, Puerto Rico, and the federal laws of the United States as they pertain to water pollution and water pollution abatement). Statutes and regulations of archaic vintage that are ignored by the water pollution control agencies of the various states are not referred to or set forth herein. Effort has been directed to preparing a practical analysis of the so-called working laws and regulations as they are now being enforced.

As one might suspect, in 1959 it was the states (and in some cases their subdivisions) that had primary responsibility for the issue, though Geuther does briefly survey some federal legislation on the subject, including the Water Pollution Control Act, passed in 1948 and expanded in 1956. (Compare the situation in 1909 here).

Among the states the leaders seem to have been New York and Maryland. The latter's  prominence might at first seem surprising, but it probably reflects the leadership of Abel Wolman in the field. Geuther thought that Mayland's effluent standards were too strict and inflexible. He cites the state's Water Pollution Control Commission's Regulation 4 (enacted in 1948 and revised in 1953):

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.

US energy regulation

Hauling crude oil to a refinery in Casper, Wyoming, c. 1900
(Casper College Western History Center)

Dan Farber at Legal Planet posted the other day on how the US federal government's regulation of the energy sector goes back a while:

To hear some of the debate, you’d think that the Obama Administration breached some longstanding barrier that left energy policy to the states and the market. If there ever was such a barrier, it disappeared over a century ago, with the onset of World War I.  Ever since then, the federal government has been actively shaping energy production, distribution, and sale.  We wouldn’t have the oil industry or the coal industry we have today if the Feds hadn’t been involved.  That’s not to mention all the money the Feds poured into building dams for hydroelectric power. Putting aside hydro, efforts to move the nation away from reliance solely on fossil fuels dates back sixty years when Congress decided to promote the use of nuclear power.

Simply listing federal statutes is enough to show how pervasively the Feds have been involved. Here is a timeline of major federal actions with a sentence about what each one did. I’ve included only a couple of the Supreme Court decisions that have helped shape the law, and none of the major administrative actions, such as the Federal Energy Regulatory Commission’s (FERC’s) deregulation of wholesale electricity prices and revamping of power grid management. I’m also excluding environmental regulations, which obviously have had a substantial impact on the energy sector. Nevertheless, the number and scope of federal interventions is overwhelming:

1906.  Congress passes the Hepburn Act, which limited ownership of oil pipelines by oil producers.

The rest is at Legal Planet.

Canadian water law

The McGill Journal of Sustainable Development Law recently published an article by Jamie Benidickson, "The Evolution of Canadian Water Law and Policy: Securing Safe and Sustainable Abundance". The abstract:

Canadian water law has evolved over an extended period of time as a complex mixture of federal and provincial legislation and case law with provincial arrangements influenced by both riparian and prior appropriation doctrine as well as by the civil law tradition of Quebec. The article reviews highlights from the long-term evolution of Canadian water law, policy and institutions following a chronological path from Confederation in 1867 to the present. Three key shifts that have more recently begun to appear in background assumptions of Canadian water law are then identified. In particular, it is noted (1) that general confidence in the abundance of water is giving way to concerns over security and occasional scarcity, (2) that the primacy of human water uses is gradually being moderated by acknowledgement of the importance of environmental flows, and (3) that international considerations may be relevant to a greater degree than previously contemplated. The concluding section of the paper presents emerging policy directions in relation to the legacy of historic water law and policy decisions and the shifting assumptions previously reviewed with emphasis on sustainability, conservation initiatives and watershed frameworks.

Vermillion River, Kootenay National Park

For pre-1867 Canadian water law, see the recent series beginning here.

The tobacco playbook

(Sorry for the long silence, I've been busy with some other things. As always, if you're interested in contributing posts to the blog, I'd be more than happy to help! In the meantime:)

Sarah Milov (a co-founder of this blog) recently published a piece in the Washington Post on the history of grass-roots anti-tobacco campaigns that might serve as a model for climate activism today. Some highlights:

Activists won the fight against tobacco by working on the local, not national, level. Neither the Occupational Safety & Health Agency nor the Environmental Protection Agency regulate secondhand smoke. Congress has never passed a Non-Smokers’ Rights Act. Instead, 41 states and 1,354 cities have enacted laws to protect the health of citizens. They did so in response to the sustained activism of men and women who argued that the government was not doing enough to protect their rights.

*****

In 1973, the dogged efforts of Betty Carnes, a sexagenarian amateur ornithologist, resulted in Arizona’s passage of the first law that banned smoking in elevators, museums, theaters, buses and libraries. Two years later, Minnesota passed an even more comprehensive Clean Indoor Air Act that banned smoking in many workplaces, stores, and banks.

*****

These state-focused efforts threw a wrench in tobacco’s well-oiled lobbying machine. Since the 1930s, the tobacco industry had enjoyed close relationships with tobacco-state congressmen who wielded disproportionate power in the Democratic Party coalition. And with millions to spend on well-connected Washington lawyers, the tobacco industry wielded clout with the federal agencies that had the capacity to regulate the many ways that tobacco touched Americans’ lives: as a drug, a consumer product, a pollutant, or a workplace hazard. 

...By 1981, 36 states had some kind of public smoking restrictions on the books. A decade earlier there had been none.

Action at the local level was even more dramatic — and even harder for the industry to combat. Berkeley passed one of the nation’s earliest antismoking ordinances in 1977 when it banned smoking in restaurants, but local smoking ordinances were not just for bohemians and health nuts. In 1981 alone, 35 cities passed indoor smoking restrictions, including Baton Rouge; Leavenworth, Kan..; and House Speaker Paul D. Ryan’s hometown of Janesville, Wis.

*****

In the 1970s, antismoking activists were outnumbered and underfunded. But by developing their own playbook — where cities functioned as both a site for social activism and a node of resistance against federal inaction — citizens cleared the very air we breathe. Today’s citizens now have a chance to do the same. 

Indian water rights, federal water rights, and state courts

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT)

Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights", published in Environmental Law. The abstract:

The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control,” and has subjected the tribes to “hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims.”

The purpose of this Article is to examine the legislative history of the McCarran Amendment ― the available Congressional Record, the Senate Report, as well as the Hearing Minutes ― in an effort to ascertain whether it was Congress’s intent to include Indian reserved water rights within the scope of the McCarran Amendment.

The legislative history indicates that “the McCarran Amendment was meant to be interpreted narrowly, not broadly.” It demonstrates that the Senators’ actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing “the years of building the water laws of the Western States . . . [to] be seriously jeopardized.”

Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a “privilege of immunity that the original owner wouldn’t have.” Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law.

For more on Indian water rights, see here.

State-federal relations and American antienvironmentalism

Youngstown Sheet and Tube Company’s Campbell Works, Youngstown, Ohio (c. 1960)

Ohio Valley History recently published Allen Dieterich-Ward's "'We’ve Got Jobs. Let’s Fight for Them': Coal, Clean Air, and the Politics of Antienvironmentalism". From the introduction (notes omitted):

Narrating the history of the environmental opposition has grown in importance over the past four decades as the rapid expansion of environmental laws gave way to a conservative antienvironmental movement determined to roll back policies seen as challenging older legal imperatives and in conflict with economic goals. Since the 1980s, first journalists and then historians have focused on the back and forth of environmental policymaking. The basic narrative is of an environmental backlash, which began in the mid-1970s in western states—the Sage Brush Rebellion that formed one of the conservative pillars in Reagan’s coalition. By the 1990s, protests over tightening federal land regulations coalesced ideologically into the wise use movement, which purported to be a modern update of Progressive Era practices (conservationist Gifford Pinchot coined the term “wise use” in 1910). As environmental politics became increasingly partisan, resurgent Republicans in Congress, such as Idaho’s Helen Chenoweth, Tom Delay of Texas, and Alaskan Don Young seized on the principles of wise use and made rolling back environmental regulations key to their “Contract with America.”

The Sage Brush Rebellion narrative provides a compelling shorthand for journalists and historians alike and is doubtless accurate in describing one element of the rise of the environmental opposition. However, the broader narrative of a grassroots backlash prompted by the relative liberalism of the 1970s has recently faced criticism by scholars who point out the ways this framework can mask the purposeful top-down strategies of powerful elites seeking policy wedges to divide the Democratic political coalition. Further, the regional focus of the Sage Brush Rebellion poses the same problems for the story of antienvironmentalism as the overemphasis on the American West that has often characterized scholarship on the environmental movement. While western concerns about federal land ownership sometimes dovetailed with fears among eastern politicians, industrialists, and blue-collar workers about the effects of environmental regulation on jobs, the latter proved at least as decisive in shaping the political landscape as conservationists within the Republican Party were first sidelined and then largely eliminated on the national level. The saga of the spotted owl and old-growth forests in the Pacific Northwest, after all, cannot fully serve as a stand-in for battles over algae blooms in Lake Erie or acid rain in the Ohio Valley and New England. In industrial cities like Gary, Indiana, and Cleveland, Ohio, opponents of environmentalism seized on plant closures as proof positive of their concerns about privileging “clean air and pure water” over “jobs and continued economic progress.” 

Air pollution law before the Clean Air Act

Speaking of Julian Juergensmeyer, it's worth taking a look back at an article he and Anita Morse published in the 1968 Valparaiso Law Review, "Air Pollution Control in Indiana in 1968: A Comment". The piece provides an interesting window into what environmental law looked like half a century ago, before the Clean Air Act Amendments of 1970 (which most people think of as simply "the Clean Air Act").

The article discusses federal legislation pushing Indiana to regulate more stringently, state legislation pushing localities to do the same, private rights of action, interstate air pollution control compacts, and the issue of enforcement.

For those who think that environmental law before 1970 was nonexistent or ineffective, here's what the article has to say about water pollution law in Indiana:

The Water Pollution Control Board has been quite successful in coping with Indiana's water pollution problem. A state legislator, Senator Mankin, in a recent comment on the Water Control Board's work has stated: "Since the enactment of the Indiana Law, 170 orders have been issued to municipalities and 85 to industries. As a result of this aggressive enforcement program, 97% of the municipal sewage in Indiana is treated, and 85% to 90% of the industrial waste."

Gary, Indiana

For more on the history of pollution law in Indiana, see here.

Standard Oil and environmental law

The October 2014 issue of Environmental History has a lot of law in it. We'll start with Jonathan Wlasiuk's "A Company Town on Common Waters: Standard Oil in the Calumet". Wlasiuk writes:

Although the twentieth-century American environmental movement was punctuated by the voices of critics within the modernist state, from Aldo Leopold to Ed Abbey, the predominant narrative focuses on calls for federal management of ecosystems that had been controlled by corporations and local governments since the advent of the industrial era. Environmental historians have engaged the debate over whether private or public forces bear responsibility for environmental decline by examining what Christine Meisner Rosen calls “industrial ecology” in search of the business roots of environmental degradation or, less often, rehabilitation. The federal regulatory framework of the EPA and the raft of antipollution legislation that emerged in the 1960s and 1970s was the culmination, not the beginning, of both federal investigations of public health concerns related to industry dating back to the New Deal era and the failure of a cluster of state oversight, local control, and free market solutions. Betsy Mendelsohn has argued that these regulatory precursors are important because they “established the legal setting for the modern environmental law movement that culminated in NEPA in 1969.” A significant chapter in this transition occurred on the Great Lakes in the twentieth century. The industrial ecology of Lake Michigan reveals the failure of market solutions and local control over the environment: corporations found little incentive to protect the quality of common waters and Lake Michigan collected the ecological consequences from polities severed by state boundaries.

This article examines the growth of federal regulatory power by analyzing a turning point in the ecology of the Calumet region on the Illinois-Indiana border and Lake Michigan. In 1889 Standard Oil transferred the heart of its domestic manufacturing empire from Cleveland, Ohio, to Whiting, Indiana, where it constructed the largest oil refinery in the world. Along the lakeshore of northwest Indiana, Standard Oil began an experiment to reorganize its petroleum empire on the principles of scientific management. For nearly eighty years, the company lived the libertarian dream of freedom from government regulation and extended the logic of scientific efficiency to the control of labor and the environment. In private interviews Rockefeller revealed the guiding ethos of his empire: “I shall hail the day when our watchword shall be efficiency, as applied to labor, to people in all positions.” As industry flocked to the Calumet region and reached a critical mass in the early twentieth century, the consequences of industrial efficiency washed down the Calumet River and into the ecology of Lake Michigan.

Chicago Park District employee Philip Saeli sprays
deodorant on dead alewives at Montrose harbor in July 1967.
Bob Langer, photographer. Courtesy of Sun-Times Media.

When water pollution drifted over state boundaries, a growing awareness of the inability of local and even state governments to control industry developed into calls for wholesale reform by midcentury. As Hugh Gorman has argued, postwar federal government mandates redefined corporate efficiency “from a guiding ethic rooted solely in the efficient use of resources to one that recognizes the need to comply with regulations based on environmental objectives.” The corporate ecology of Standard Oil on Lake Michigan reveals how a commitment to technological control and efficiency produced an environmental collapse that transformed Lake Michigan and threatened the public health of millions of Americans. Although the federal government intervened by the late 1960s, their caution in deferring to local, state, and interstate solutions challenges [James] Scott’s characterization of an aggressive “administrative ordering of nature and society.” In the Calumet region, this description better fits the actions of industrial corporations. 

Among other interesting points, here is Wlasiuk putting a renowned court decision on the public trust in context:

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. 

Environmental law and policy in Brazil (1930-1945)

[Today we have a guest post from Frederico Freitas, a Ph.D. Candidate in Latin American History at Stanford, who recently presented a paper at the World Congress of Environmental History on environmental law during the Vargas regime:]

Ranger of the newly created Forest Service, c. 1944
(O Serviço Florestal no Biênio 1943-1944
(Rio de Janeiro: Ministry of Agriculture, 1945))

Brazil during the first Getúlio Vargas regime (1930-1945) produced a boom in conservationist legislation that included a forest code, a new water law, the creation of the country's first national parks, and the establishment of a forest agency and a national institute of forestry. The move by the Vargas regime to implement a conservationist agenda was unprecedented—apart from the establishment of botanical gardens and a few protected semi-urban forests around Rio de Janeiro, previous governments had never acted to establish a conservation program. The change brought by Vargas had its root in a new phenomenon—the appearance on the Brazilian national stage of a cadre of conservationists who were able to align US- and Europe-born ideas of conservation of nature with a nationalist discourse akin to the one put forward by Vargas’s ideologues.

Yet, all the energy invested in environmental legislation failed to change the previous pattern of lack of state commitment to environmental issues. In fact, the new legislation concealed a reality of chronic lack of federal control over both public and private land. Brazil had a long tradition of what historian José Drummond called a “weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, flora, and fauna.” After the fall of the Brazilian monarchy and the promulgation of the Republican constitution of 1891, all public land, which had been in control of the Brazilian state in the nineteenth century, was then turned to the hand of state governments. In the Vargas years the Brazilian federal government had almost no public land left to manage besides a handful of federal and military properties and the land alongside railroads. 

In the 1930s the federal government not only did not control most of Brazil’s public land but also had no legal instrument to expropriate private land. It was only in 1941 that the central government issued a decree-law granting itself the powers to expropriate land for public interest. This new legislation allowed the federal government to expropriate both private land and public land owned by state or municipal governments. However, it failed to trigger an era of federal intervention in land issues. The regime of Getúlio Vargas, despite being turned into a fascist-leaning dictatorship after 1937, lacked the power to curb the interest of the local agrarian elites.

Federalism in the US Clean Water Act

Oliver Houck recently published "Cooperative Federalism, Nutrients, and the Clean Water Act: Three Cases Revisited" in the Environmental Law Reporter. The article has a substantial amount of historical discussion, both of the origins of the federal-state relationship outlined in the Clean Water Act, and of the three cases Houck discusses: the Gulf of Mexico, Florida, and the Cheasapeake.

Houck writes of the Act's section 1251(b) ("It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution"), "No phrase in the CWA is so beguiling, and misleading." He explains (citations omitted) that its language:

dates back to 1948 and the first U.S. law to address water pollution, declaring “the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution.” Which was what the law in fact did. The 1948 statute offered funding for sewage treatment plants, assistance from the U.S. Surgeon General on pollution issues, and a process for referral of serious matters to the U.S. Attorney General, who could then sue to abate a discharge based on concepts of common law. State primacy was genuine.

Cuyahoga River on fire

The 1948 language was retained like a catechism in federal amendments of 1956 and 1961, which made federal enforcement yet more difficult, and those of 1965, which encouraged states to adopt water quality standards, based on their own criteria and uses, and then move to abate discharges that violated them. State primacy remained. Even a national goal of “clean water” was rejected in favor of state management. The federal role was again to fund, to advise, and, where pollution affected interstate waters, to call an “abatement conference” to jawbone a solution, and then only when all else failed.

All else failed. From the 1948 Act to 1970, the United States had managed to bring just a single enforcement case against a single discharger. Federal-state abatement conferences on the Potomac River and the Puget Sound were limping into their second decade. Rivers were catching fire, a funeral was held for the death of Lake Erie, drinking water intakes along the Mississippi were choking on dead fish.

The first National Scenic Area

Michael Blumm has posted "The Struggle Over the Columbia River Gorge: Establishing and Governing the First National Scenic Area", a review of Kathie Durbin's Bridging a Great Divide: The Battle for the Columbia River Gorge (Oregon State UP, 2013). The abstract:

This review of the late Kathie Durbin's final book discusses the unlikely enactment of the 1986 Columbia River Gorge National Scenic Area Act and the events leading up to it. The statute's circuitous route through Congress was managed by Oregon's Senator Mark Hatfield, who convinced a skeptical President Reagan to sign the law he essentially opposed. Durbin's account examines both the legislation and the first quarter-century of its implementation. Protecting scenery the 85-mile long, 292,000-acre area with a majority of the land owned by over 50,000 residents required difficult balancing, and Durbin explains the many compromises struck in the legislation and ensuing management by an interstate compact commission and the U.S. Forest Service.

The Gorge Commission, through its authority to approve county zoning ordinances in the Scenic Area, fundamentally changed local land use practices. The legislation also directed the Forest Service not only to manage its land to preserve the Gorge's scenery but also gave the agency unprecedented authority to regulate private lands in so-called special management areas, consisting of some 114,000 acres of the area's most environmentally and visually sensitive lands. Durbin's book offers many insights of federal-state and state-local relations that should be of value to other efforts to preserve natural resources in areas dominated by private lands. The book also spotlights a number of controveries involving air quality, treaty fishing rights, dam removal, and efforts to site wind farms, a destination resort, and an Indian casino. Natural resources law would benefit from more case studies such as that provided by Durbin's engaging look at the Columbia River Gorge.

Local vs state regulation

As noted here last month, Joel Tarr presented a very interesting paper on the regulation of natural gas drilling in nineteenth-century Pennsylvania at the 2013 meeting of the American Society for Environmental History. In the wake of the conference he was kind enough to send me a link to a piece he published last year in the Pittsburgh Post-Gazette (kudos to the newspaper for publishing serious stuff like this), "When the Streets Ran with Gas".

Though state-federal relations and federal preemption of state environmental law garner much attention today (e.g. here and here), Tarr's piece reminds us that tensions between environmental regulation by local governments and the law of higher levels of government were and continue to be a major source of conflict regarding the legal regulation of the environment (and not just in the US). The article explains that one of the major political and legal issues regarding shale fracking today, "the right of municipalities to enact regulations controlling natural gas operations within their boundaries without conflicting with state law... was also prominent in the 1880s during the early days of traditional natural gas development and distribution", and goes on to explore litigation and legislation over this issue in 1880s Pennsylvania.

Recovering from the Recovery Narrative

SSRN has "Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization", another paper from Michael Burger (see an earlier post here) on the interactions between American cultural-environmental history and current legal issues. The abstract:

Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States.

Sharpsteen on Hoornbeek's Water Pollution Policies and the American States

H-Environment recently posted a review by Bill Sharpsteen of John A. Hoornbeek, Water Pollution Policies and the American States: Runaway Bureaucracies or Congressional Control? (State University of New York Press, 2011):

Drawing on a substantial amount of previous research and what the author cryptically refers to as personal experience, Hoornbeek breaks down the complex state and federal machinery behind the country’s water pollution laws, and how some of it has succeeded while leaving much left to do. As he puts it, “as one looks at the evolution of congressional direction in water pollution control, one sees a continuing process of largely predictable policy outputs, followed by less certain policy impacts, followed by highly uncertain policy outcomes”. Nothing is easy when it comes to a problem as endemic as water pollution.