The California ascendancy: Explaining world leadership in environmental law and policy

[A guest book review from Geoffrey Wandesforde-Smith:]

In the newest addition to the Studies in American Politics series from Princeton University Press, David Vogel in California Greenin’: How the Golden State Became an Environmental Leader (Princeton UP, 2018) asks how it is that California has had such success in protecting its environment and has become a world leader in making and implementing environmental policy and law.

Vogel sketches boldly on a large canvas:

This book describes what is in many respects a remarkable success story. It demonstrates how a state government has been able to overcome substantial obstacles and enact a wide range of regulations that have made measurable - though admittedly uneven – progress in protecting its environment and improving the quality of life of its residents. Although California has often seemed on the verge of ecological (as well as economic) catastrophe, it has proven remarkably resilient. The state’s ability to remain the most important source of environmental policy innovation in the United States over so many decades and across such a diverse range of policy areas is a significant accomplishment.  It is worth understanding why and how this particular state came to play such an important leadership role in this area, as well as the broader policy implications of such leadership [p. 6]. 

One of those implications, Vogel writes, is that the story of California’s ascendancy holds lessons for the world:

What happens in California…has a global impact.  During the 1980s, the relative stringency of California’s vehicle emissions standards was an important reason why Germany chose to support the adoption of similar standards by the European Economic Community… More recently, according to…a Nobel Prize-winning scientist from Mexico, “the rest of the global economy is looking to California, as one of the world’s largest economies, to take the lead” in addressing the risks of global climate change.  The state has come to play an increasingly active international role [p. 8, citations omitted].

When it comes to explaining how and why California has become such a successful and resilient law and policy leader Vogel focuses on three factors he considers to be interconnected in varying ways at different times in the state’s history, depending on the issues being addressed.  

One is the political mobilization of California’s citizens, most especially in the late 1960s and 1970s.  A second is the support for environmental policy initiatives provided at critical moments by least some important segments of an often divided business community.  And a third is the growth over time of the state’s capacity to design and implement programs of resource management and environmental regulation, in some cases in state agencies recognized as world leaders in the work they do [1].

This is obviously a provocative thesis and it may well keep students of the history of California environmental law and policy busy for some time to come.  But it also and immediately raises the question of why, if the story of California’s ascendancy, which on Vogel’s telling has its roots in the late nineteenth century, is so remarkable and potentially so influential, the story hasn’t been told before now.  

The answer is that the story has been told, at least in part, twice before, although Vogel chooses not to engage seriously with either prior account [2]. 

The legality and legitimacy of Japanese whaling - Part II

[Second and final part of a guest post by Geoffrey Wandesforde-Smith - Part I is here.]

The second point to take away from Arch’s book is that when organized whaling became established in early modern Japan, under the watchful eye of domainal lords (daimyo), who could decide who had jurisdiction over particular whaling areas, or over bodies of whales either washed up on shore or brought to a particular shore for processing, regulation was a way of dealing with the local problems of particular businesses, and of their interrelationships, and of the ways those businesses could benefit the domain through fee exactions, as a kind of tax-like income for the domain. It was not about ensuring the continued availability of whale meat as a food source. Indeed, when it took hold and expanded during the Tokugawa peace, Japanese whaling was not primarily about food. It was about profit and about ensuring the continued supply of a wide range of whale products. Sutter is eloquent on this point:

Workers using windlasses to pull sheets of blubber off a whale for processing in the sheds behind.
Courtesy of the National Diet Library of Japan.

Whale meat, which today sits at the heart of Japanese claims for the (legality and legitimacy of) … whaling’s deep cultural importance, was the least of it. Arch shows that whale meat, either fresh or salted, simply did not travel well and was thus of minor dietary importance during the early modern period. But whale oil served as a vital illuminant, other whale products helped the Japanese fertilize and work their fields, and, in one of this study’s most surprising insights, we learn how whale oil was also widely used as a pesticide that allowed the Japanese to intensify rice culture [p. xi].

And, again, Arch herself is more pointed:

The legality and legitimacy of Japanese whaling - Part I

[Sorry for the continued silence, but thanks to Geoffrey Wandesforde-Smith for pitching in with this two-part book review!]

At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.

Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].

Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].

But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.

The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].

If the validity of a sustainable take were ever to be established beyond a reasonable scientific doubt, the theory further holds that Japan would be able to resume commercial whaling in conformity with the 1946 International Convention for the Regulation of Whaling, which entered into force in 1948. Perhaps other countries that have given up whaling since the 1986 moratorium went into effect would do the same, although most observers of the IWC would consider that very unlikely. If Japan’s theory is ever to translate into practice, then much obviously depends not only on the scientific validity of Japan’s NEWREP-A research program but also on the legitimacy of the claim that eating whale meat has become so integral to Japanese identity that its legal prohibition would constitute an unwarranted act of cultural discrimination and deprivation.

So, against this background, what is the real history of whaling in Japan? Is it first and foremost a story about the continuation of a centuries old cultural tradition?  And how likely is it that the whaling Japan continues to do in the name of scientific research under IWC rules will validate a long-standing dedication to the sustainable use of whales for food?

The earliest boundary water treaty

Figure 1: 
Memorial cone of the Mesilim Treaty

Thanks to Peter Sand for contributing this post!

[Footnotes after the jump.]

The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty, concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō (Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, depicts Lagash ruler E’anatum leading his army, and vultures devouring slain Umma warriors (figures 2 and 3).

Mesilim [or Mesalim, born ca. 2600 B.C.] was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the loose alliance of small adjoining Sumerian city-states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon.[4] Because of the prevailing precarious rainfall conditions, the agricultural economy of the entire basin area has always been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an elaborate system of canals and levees which inevitably require close inter-community cooperation. The geographic focus of the bilateral Lagash-Umma agreement, concluded under Mesilim’s authority as external arbiter, was the fertile Gu-edena valley, roughly ten by four kilometers wide and irrigated by Tigris waters from a canal named Lum-magirnunta on the border between Umma and Lagash, with boundaries marked by stone steles.

Figure 2: Stele of the Vultures

Figure 3: Stele of the Vultures

Part of the treaty was a crop-sharing arrangement for a portion of boundary land (some eleven square kilometers) downstream on Lagash territory, that was cultivated by Umma under lease, against payment of an annual rental fee (máš, calculated in silver-shekel equivalents of barley crops) to cover the costs of canal maintenance.[5] However, when Umma repeatedly refused to honor its accumulated tenancy debts, hostilities broke out, resulting in partial destruction of the canal and in unilateral diversions of water upstream. In several successive military confrontations (‘the first known war in history that was, in essence, fought about water’),[6] Umma was ultimately defeated by Lagash (first under the leadership of E’anatum, ca. 2470 B.C.; and later under his nephew Enmetena, ca. 2430 B.C.),[7] and was forced to accept the reconstruction (and extension) of the canal and the reinstatement of the boundaries as originally drawn up by Mesilim.

Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-established, does not seem to have survived for long, and was eventually overtaken and mooted by external political events (the Akkadian/Sargonic invasions) in subsequent generations. Even so, the agreement has been hailed as ‘the first international arbitration’,[8] and as ‘the oldest treaty of which there is a reliable record’.[9] It remains a unique early attempt at resolving a dispute over boundary waters by formal reference to a superior spiritual order (in this case, the deities of both parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of international law in this field – well over 4,000 years ago.[10]

--------------------------

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):

Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)

At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):

A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))

Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:

To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.

And on June 18, Lord Faulks answered:

The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.

At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Sir Matthew Hale and the moral law of stewardship

Today we're fortunate to have an interesting guest post from Erin Drew, of the University of Mississippi English department:

Sir Matthew Hale is frequently credited with a key role in establishing the public trust doctrine in modern environmental law—a claim that has been contested by multiple scholars on the basis of both the legal relevance to American law and whether his claims for public rights in De Jure Maris can be taken as a statement of public trust at all. Whatever Hale’s relationship to public trust doctrine as a principle of law, however, his religious writings show that he relied upon legal metaphors of trusts and stewardship as the basis for moral arguments for the human obligation to care for their environment. References to human stewardship were not uncommon in religious writing of the seventeenth and eighteenth centuries, but Hale elaborates on the moral implications of the steward’s fiduciary role in a more extensive and legally detailed way than most, emphasizing the human obligation to account to the proprietary “lord,” God, for the responsible and proper use of that which has been entrusted to them.

In a chapter in his posthumously published Contemplations Moral and Divine entitled “The Great Audit, with the Account of the Good Steward,” Hale uses the Book of Matthew’s parable of the talents to imagine God calling humans to “account” for their use of the “blessings and talents” that God “committed to [their] trust and stewardship, to manage … for they ends they were given.” While the “blessings and talents” Hale discusses are broad and comprehensive, he gives special attention to the implications of human beings’ “stewardship” of creation for their duties to nonhuman creatures. In the section subtitled “Touching Thy Creatures,” Hale writes: “I received and used thy creatures as committed to me under a Trust, and as a Steward and Accomptent for them; and therefore I was always careful to use them according to those Limits, and in order for those Ends, for which thou didst commit them to me.” Hale frames the “Limits” to human control in terms of justice: God “has given us a Dominion over thy Creatures, yet it is under a Law of Justice, Prudence, and Moderation; otherwise we should become Tyrants, not Lords.” That “Law of Justice” requires using the nonhuman world with “Temperance and Moderation,” for the “Support of the Exigencies” of human life, yet with “Mercy and Compassion” for the “Powers of Life and Sense” which non-humans possess. To fail in either temperance or compassion would constitute a “Breach of that Trust under which the Dominion of the Creatures was committed to us, and a Breach of that Justice that is due from Men … to be merciful to [their] Beasts.” Cruelty and mistreatment of other creatures is therefore “a Tyranny inconsistent with the Trust and Stewardship that thou [God] has committed” to humans.

Thus Hale imagines a contractual relationship existing among God, humans, and non-humans, making humans morally responsible for the well-being of present and future generations of beings. Though Hale, like any contemporary moralist, stresses the sinfulness of the “Luxury and Excess … Lusts … vain Glory or Ostentation” that spur humans to mistreat and misuse the non-human creatures in their power, for him the fundamental sin is the violation of man’s fiduciary duties as God’s steward. Thus using creatures to excess is not simply a sin of personal gluttony. It breaks the terms under which God granted humans their limited dominion, by (in this case, literally) eating into God’s resources: whenever eating or drinking, Hale says, “I checked myself, … still remembered I had thy Creatures under an Accompt; and was ever careful to avoid excess or Intemperance, because every excessive Cup and Meal was in Danger to leave me somewhat Insuper and Arrear to my Lord.” The sin of mis- or over-use of God’s creatures, for Hale, lies in the violation of the contract between man and God to care for his creation according to the stipulated terms, and the failure to maintain God’s creation as a steward ought, by taking more from it than can be sustained. Hale believes the power granted to humans as the stewards of the world to be by its very nature subject to a law whose primary purpose is to ensure that justice and happiness is, overall, extended to each creature. That is, after all, the rationale that licenses human sovereignty over the world: that they maintain God’s ideal balance among the competing needs of various creatures for the optimal happiness of all. Only by justly fulfilling the duties laid out for them by God can humans legitimately claim “dominion” over the nonhuman world.

It makes sense for Hale to rely on the language of law and justice to reinforce moral obligations, since as biographer Alan Cromartie points out, Hale’s legal philosophy was based upon the premise of a legislating God who was “the basis of all natural moral knowledge,” as well as the premise that “the rule that all contracts should be kept was much the most important natural law.” In this, Hale was a part of a longstanding tradition of contractarian natural law, which drew moral principles from the nature of the fundamental contract between God the creator and his creations. Not all those who shared Hale’s belief that human beings were the trustees and stewards of God’s gifts extended their obligations to nonhuman creatures, but there is reason to believe that his opinions on that subject had a long and lasting influence on English morality, if not law: “The Great Audit” was excerpted, condensed, and reprinted regularly as a pamphlet from the 1690s to the 1790s, and the sub-section “Touching Thy Creatures” was the longest of the eight sub-sections included in those condensed editions, taking up five of a total of around twenty-five pages.

Sustainability: of forests, ships, and law

[Another guest post, with lots of useful references, by Peter Sand of the Institute of International Law, University of Munich (see here for his earlier post on Karl Neumeyer). Revised from Environmental Policy and Law 37:2-3 (2007) 201-203. Notes are after the break.]

“Sustainable development” has become a household word – if a heavily loaded one – to international lawyers, economists and green politicians alike. Yet, the etymology of the term spans a number of other disciplines, and more than three centuries of environmental history.

The Report of the ‘Brundtland Commission’, published in 1987,[1] had borrowed the term from the 1980 IUCN/UNEP/WWF World Conservation Strategy, drafted under the guidance of the then Director-General of IUCN, Dr. David A. Munro (left) – distinguished Canadian forester and wildlife biologist (1923-2004).[2]

Canada’s oldest forest school is the Faculty of Forestry at the University of Toronto. Its founder (in 1907), and first dean until 1919, was a German forester, Bernhard Eduard Fernow (1851-1923) – who from 1886 to 1898 had served as the first chief of the US Division of Forestry (which later became the Forest Service within the Department of Agriculture).[3] Fernow was the architect of the 1891 Forest Reserve Act (part of the General Public Lands Reform Act of 3 March 1891), which laid the ground for ‘creative’ conservation measures on the federal public domain – and it comes as no surprise that he had originally studied law (at the University of Königsberg).[4] His successor as US chief forester was Gifford Pinchot (PhD in forestry, University of Munich 1898; founder of the Yale School of Forestry in 1900, now School of Forestry and Environmental Studies),[5] whose mentor and role-model had been another German forester, Sir Dietrich Brandis.[6] Brandis, after obtaining his PhD in botany at the University of Bonn, had joined the British colonial service in 1856 as ‘superintendent of forests’ in Burma, and from 1864 to 1883 served as first Inspector-General of Forests in India and Pakistan.[7] He was Rudyard Kipling’s legendary “gigantic German, head of the woods and forests of all India, head ranger from Burma to Bombay”.[8] His practices and principles of ‘sustained yield’ forest management – and those of his successors, Sir William [Wilhelm] Schlich (1840-1925, founder of the Royal Indian Forestry College at Cooper’s Hill, since 1905 at Oxford)[9] and Berthold Ribbentrop (1843-1917, Inspector-General of Indian Forests from 1885 to 1900)[10] – had a lasting influence on generations of foresters in North America, Asia, Australia and New Zealand.[11]

The theoretical basis for forest management, including the concept of ‘sustained yield’, had been developed in the 18th and 19th century at specialized forestry academies in Germany, such as Tharandt in Saxony and Münden in Hanover (where both Fernow and Ribbentrop graduated).[12] The pioneering scientific treatise on the subject was the ‘Sylvicultura Oeconomica’ (at top) published in 1713 by Johann [Hannss] Carl von Carlowitz (right, 1645-1714),[13] lawyer and manager of the Duke of Saxony’s silver mines (hence vitally dependent on long-term timber supplies!). It comprised the first formulations of such ‘post-modern’ terms as precaution [Praecaution, Vorsorge] for intergenerational benefits [den Nachkommen zum Besten], by sustained use [nachhaltende Nutzung]; and it was followed by other works now postulating a general policy of sustainable forest economics [nachhaltige Wirtschaft mit unseren Wäldern].[14]

Carlowitz in turn had drawn the inspiration for his innovative policies from multiple sources. After completing his legal studies at the University of Jena, he had taken the customary ‘grand tour’ of Europe in 1665-69, travelling to Italy, the Netherlands, Scandinavia, England and France. A focus of his attention at the time were the administrative reforms undertaken by Louis XIV’s powerful minister of finance, Jean-Baptiste Colbert (1619-1683, right); in particular, the great reorganization of French forestry governance which culminated in the ‘Ordonnance des eaux et forêts’ of 1669.[15] 

It must be kept in mind, though, that Colbert’s own concern for the conservation and sustainable use of France’s forest resources had very precise strategic motivations; i.e., the long-term security of timber supplies for the ship-building industry, which was the basis of French naval power.[16] Sure enough, there had been ominous historical warning signals before: The decline of Venetian maritime dominance in the Mediterranean during the 16th and early 17th century was widely attributed to timber shortages in naval construction, caused by deforestation.[17] It was no coincidence, therefore, that another contemporary pilot text which Carlowitz acknowledges among his source references – Sylva: A Discourse of Forest-Trees, and the Propagation of Timber in His Majesty’s Dominions (1664), by John Evelyn (English lawyer and writer, 1620-1706, educated at Oxford’s Balliol College and the Middle Temple, right)[18] – had been compiled and published at the request of the Commissioners of the British Navy.  After the Napoleonic Wars, Isaac D’Israeli noted that the fleets of Admiral Nelson had been constructed “with the oaks which the genius of Evelyn planted.”[19] For the same strategic reasons, Russian Tsar Peter I in 1703 had designated the oak forests of Kharkov and Simbirsk as permanent state reserves for ship timber;[20] and in 1817, the US Secretary of the Navy obtained statutory authorization to reserve public oak forest lands for ship-building.[21]

In retrospect, then, the concept of ‘sustainable development’ may indeed be said to have its historical roots in subtle power politics as much as in bona fide intergenerational equity.

Guest Post: A Video Project about Austrian Law and Landscape

David Schorr recently invited me to share a few words about my latest video project with the readers of this blog. The video will be called “Wood, Water, Stone, Sky, Milk: Law and Landscape in Austria.” It will run about ninety minutes once it’s complete, but in the meantime I’ve been releasing short draft segments, one of which was cross-posted here a few weeks back.

The latest segment is called “Alexander and Iris Talk About Stone (without meeting),” and it explores an Austrian legal method beguilingly named after one of the most prominent elements of the Austrian landscape:

Both Alexander and Iris were great sports, and their enthusiasm for video as a medium enabled this segment to address a serious subject with a light touch and to reach viewers well outside university circles. That’s a tone and openness I’d like to achieve throughout the film.

The project grows out seven months I spent as a Fulbright Scholar at the University of Salzburg in 2015, but its roots lie a bit further back. In 2012, I began an extended, unpaid leave of absence from Rutgers-Newark School of Law, where I had taught constitutional law and legal history for ten years. The reasons for the change were personal: my wife is a professor of English at Wesleyan University, and the burdens of my commute from New Haven came to outweigh the benefits of an academic career. We value our lives together.

The decision came with some significant material costs, but it has given me the time and freedom to strike out in new directions, and that’s been ever-inspiring. I had already published three books, and I wanted to jump well outside my comfort zone and explore modes of historical expression that were entirely new to me. I wanted to engage with radically different forms and styles of telling stories about the legal past. As it happened, two of the forms that came to interest me—two new directions I took—were visual.

The first new direction led me into the world of museum exhibitions. Most important, I began collaborating with my friend Mike Widener, Rare Book Librarian at Yale Law School, on an exhibition for the Grolier Club in New York about illustrated law books. Called “Law’s Picture Books,” the exhibition will feature a number of works that are sure to interest readers of this blog, like this eighteenth-century book about Dutch water law, or this great edition of Bartolus. Do come join us when the exhibition opens in February 2018—it’s going to be exciting.

The second new direction led me into the world of video production and editing, which has become one of the most profound humanistic experiences of my life—it forced me to wrestle with basic questions about our knowledge of the world. I’ll find another occasion to reflect on the challenges involved when a university scholar tries to learn digital video from scratch. But I can say here that, to my relief, it struck me immediately that the storytelling foundations of documentary work and my own academic writing were basically the same. And, happily, after a couple of years of trial-and-error learning, I’ve become familiar enough with Adobe’s suite of post-production products—storytelling tools of jaw-dropping power for historians—to create work that’s significantly better than the first film I made on my Flip Video camera. Plus, the great thing about being a beginner again is there’s so much opportunity to learn so much more.

“Wood, Water, Stone, Sky, Milk”—or, when I’m feeling less ambitious, “Stone, Water, and Wood”—began as a very different video project. When I put together my Fulbright proposal, I intended to make a film about the Austrian legal philosopher Hans Kelsen and his pure theory of law. This seemed like a project just quixotic enough to be interesting to me. But after spending a series of afternoons meditating on Kelsen along the banks of the beautiful Salzach river, it became clear that any filmic treatment of Kelsen would after all have to be a film.  That is, it would require exploring his highly abstract thought in a way that would be grounded in—indeed, that would proceed from—worldly, visual metaphors. It also became clear that the project was too narrowly conceived.

Peter Sand on Karl Neumeyer as precursor of transnational environmental law

Alongside the thread on early environmental law courses, people have been wondering about the first environmental law textbook. Today Peter H. Sand, Lecturer in International Environmental Law at the University of Munich, joins us for a guest post on a contender for the title (see also his comment here). Peter writes [notes are after the jump]:

The history of international environmental law as an academic topic is generally associated with the emergence of treaties and case law on specific sectors such as shared watercourses, the oceans, or – from 1900 onwards – selected wildlife species. Doctrinal attempts at identifying common (trans-sectoral) elements, and a coherent discipline of international regulation and governance in this field, did not make their appearance until well into the second half of the 20^th century, with a prevailing and near-exclusive focus on public international law.

One notable exception was the pioneering work of Karl Alexander Neumeyer (1869-1941), who approached the subject from his distinct perspective of conflict of laws, in a monumental four-volume treatise titled Internationales Verwaltungsrecht (International Administrative Law, 1910-1936).[1] His life-time vision was the development of a new unified system of rules applicable to the transnational aspects of administrative law, to match the well-established conflict rules of private international law and procedure. And in the process, as part of an effort to demonstrate the pragmatic foundations of his approach in different sectors of public administration, he also assembled and analyzed a unique compendium of contemporary legal source materials that would indeed qualify today as typical ‘transnational environmental law’.

Chapter 8 in volume 2 of Neumeyer’s treatise (pp. 1-135), published in 1922, was headed Naturkräfte und Naturerzeugnisse (forces and products of nature). The first section, dealing with internationally shared water resources and water power, is based on the author’s earlier study of “water uses in international administrative law” (1915),[2] criticizing the rigid territorial sovereignty principle invoked by the Austrian Administrative High Court in the notorious 1913 Leitha River case,[3] and advocating the reciprocal protection of foreign legal interests along the lines of the 1909 US-Canadian Boundary Waters Treaty.[4] Other sections deal with the transboundary regulation of mineral resources; agriculture, forestry, hunting and fishing (based in part on the author’s early practical experience as law clerk at a district court in the Bavarian-Austrian border region); and the management and conservation of marine living resources, including a discussion of the 1893 Bering Sea fur seals arbitration.[5] Karl Neumeyer’s emphasis on the need for a mutual ‘other-regarding’ accommodation of foreign concerns, across the entire spectrum of nature-related topics, was way ahead of his times.

Neumeyer taught international law – with a focus on history and conflict of laws – at the University of Munich from 1901 onwards, until the Nazi regime forced him into retirement in 1934 because of his Jewish ancestry and barred him from continuing to work with the Hague Academy of International Law (where he had first lectured in 1923) and the Institut de Droit International (which had elected him to full membership in 1926).[6] Ultimately, when he was notified of the impending eviction from his house and the confiscation of his library, he and his wife decided to commit suicide on 16 July 1941.[7] There is a memorial tablet at their former home near the university; a Neumeyer-Strasse in the city; and in 2008, the Munich Law Faculty (whose dean he was in 1931-32) named the building that houses its Institute of International Law (which he had helped to create) in Karl Neumeyer’s honor and memory. 

A Source of Environmental Concern: The Tyne’s River Court Books, 1644-1834

[Today we have a guest post from Leona Skelton, an environmental historian currently working at the University of Bristol as an AHRC-funded Post-doctoral Research Assistant on the collaborative project, ‘‘The Power and the Water: Connecting Pasts with Futures’’. Her doctoral thesis compared waste disposal, environmental regulation, and attitudes towards cleanliness and dirt in York, Edinburgh and several other northern English and lowland Scottish towns, 1560-1700.]

Carmichael, Sandegate Shore at Newcastle on Tyne (1830)
(R. Johnson, The Making of the Tyne (1895), p. 23)

Environmental concern is something most people proudly associate with more recent times. It is true that Newcastle Corporation, which regulated the estuary of north-east England’s River Tyne, would certainly not win a conservation prize for sensitive river management today. However, the records of their weekly river court, extant from 1644 to 1834, held at Tyne and Wear Archives in Newcastle, provide unique, detailed and valuable evidence of early environmental concern and demonstrate that the men who managed the River Tyne were by no means completely ignorant towards protecting the Tyne from ‘harm’, as they defined it to the best of their knowledge. The stereotypical image of early modern people pouring their waste into the river without any consideration of the consequences of their actions is an enduring but an inaccurate one.

The court books show that the disposal of human and industrial waste was highly regulated, especially on riparian property and even more so on wharves or jetties. Open sewers were designed only to carry rainwater and small amounts of other liquid waste to the river, notably not to carry solid waste to the river. The majority of households used dry privy pits, which were dug out periodically and transported by horse and cart to local farms and applied directly to arable fields as fertiliser. The men who managed the River Tyne’s estuary in the pre-modern period did not understand the chemical changes they caused by permitting urban sewers and riparian businesses to discharge their untreated liquid waste into the river water. But they considered in breath taking detail and depth the consequences of each and every structural change to the bed and channel of the river and they expressly forbade the deposition of any solid waste into the river, either directly or indirectly, something which required substantial and sustained effort to regulate. Their motivations were not environmental in a modern-day sense; indeed, I have not seen the words ‘environmental’ or ‘pollution’ in any of the pre-1800 documents I have read. However, Newcastle Corporation was careful and it was concerned about maintaining its own river standard on the Tyne.

Driven, perhaps, primarily to prevent the choking up of their great liquid highway which was crucial to trade and their revenues, they did think carefully about the proposals they sanctioned and they were concerned about the impact of human activity on the River Tyne in a pre-modern context. They were in touch with their environment, they were concerned about hurting the river, damaging the river, spoiling the river, and even potentially destroying the river, all their own words, and they went to considerable lengths to protect the River Tyne as a result of their concerns. In addition to enforcing a substantial list of specific river bylaws, all servants living in ‘Gateshead, Sandgate, and the Close’ had to swear in court annually that they would not cast rubbish into the river. Many bylaws passed at this time have been criticised as merely reactive or exclusively fiscally motivated, but this procedure, in particular, was preventative. Clearly, fines were the means, not the ends.

Environmental-legal conflicts in the western Mediterranean mining industry – Portugal

[We have today a guest post from Paulo Eduardo Guimarães, Senior Lecturer in Contemporary History at the University of Évora and researcher at NICPRI (Research Unit on Political Science and International Relations). Paulo presented a paper on this topic at the recent World Congress on Environmental History at Guimarães.]

The growth in the demand for sulphur and copper by the British world economy was directly responsible for the spurt in the exploration of old mine deposits of pyrite ores beginning in the middle of the 19th century in the western Mediterranean. As consequence, the roasting of pyrites in blast furnaces or in open air ‘telleras’ in large scale operations led to conflicts with landowners, farmers, peasant communities, miners, and local populations affected by acid rain and sulphur smoke.

The old open pit mine of Sao Domingo (1958-1965), now full of acid waters

The violent incidents of Rio Tinto in 1888, when the Spanish army intervened to repress a peaceful demonstration against that pollution, killing about two hundred men and wounding an indeterminate number of other protesters, became the landmark of that conflict in the historiography of the western Mediterranean mining industry. However, violent reactions against modern mining industries were not exceptional in this part of the world. An account of these types of industrial conflicts in Portugal shows the emergence of popular violent reactions against mining operations due to environmental disruption. These included the occupation of mining fields, ‘Luddite’ actions (destruction of machinery, forests, and mining infrastructure), and sabotage in larger explorations located in the southern Alentejo province and in the mines of the Aveiro district.

The detailed analysis of each incident reveals a more complex picture than the label ‘peasant protest’ or ‘environmentalism of the poor’ suggests. Not only peasants and poor people were involved in collective actions against mining companies; landowners and farmers made use of legal instruments. Yet they were often unsuccessful in court, as the mining law favoured the foreign capitalist ventures. The use of ‘expropriation for public utility’ was a sword of Damocles hanging over these disputes, and the companies often used it.

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.

Hard-to-see legal changes illustrated by environmental history

Today we have a guest post from Dan Allosso, a PhD candidate in history who runs the new www.environmentalhistory.us website, which has video lectures, a blog, and reviews of important books in environmental history. Dan recently reviewed one of the most important books of legal history, Morton Horwitz's The Transformation of American Law, 1780-1860 (Harvard UP, 1977), as well as Ted Steinberg's Nature Incorporated: Industrialization and the Waters of New England (U Mass Press, 1994). He put together a condensed version for our blog:

Harvard Law professor Morton Horwitz’s The Transformation of American Law, 1780-1860 is not an Environmental History text, per se. Nor is it a well-known volume outside legal history circles, in spite of winning the Bancroft Prize in 1978. It’s not an easy read, but it tells an important story, which was amplified by Horwitz’s student Ted Steinberg in the EH classic, Nature Incorporated.

Horwitz argues a fairly radical case, which unfortunately is not widely understood because of the book’s subject matter and style. Horwitz focuses on common law. Constitutional law, he says, “represents episodic legal intervention buttressed by a rhetorical tradition that is often an unreliable guide to the slower (and often more unconscious) processes of legal change in America” (xii). Constitutional law also focuses on judicial review, rather than what Horwitz characterizes as a very active, constructive, legislative role taken on by nineteenth century jurists. “By 1820,” he says, “the process of common law decision making had taken on many of the qualities of legislation. As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies” (2). The ancient tradition of “an eternal set of principles expressed in custom and derived from natural law” gave way to an understanding of law as “an instrument of policy” that could be used “for governing society and promoting socially desirable conduct” (30). Once this change had been accomplished, the game became defining the terms “socially desirable.”

Government liability for flooding

Following up on last week's posts on Christine Klein and Sandra Zellmer's new book, here's another post from them, originally posted on CPRBlog: 

Ft. Calhoun Nuclear Reactor , Nebraksa
in the midst of flooding Missouri River
(Corps of Engineers)

Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution. Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves.  They’re likely to be disappointed.

Lawsuits seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act.  However, this claim is just as unlikely to stick, for good reason.  As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees.  This is because the impact is neither a “permanent physical occupation” of the property by the government, nor is it an excessive regulation that deprives property of “all economically beneficial use” or has otherwise gone “too far” in adversely affecting reasonable investment-backed expectations of the floodplain owners (in the words of the U.S. Supreme Court). It is simply not reasonable to settle in the floodplain and expect that the property will never flood.

These plaintiffs are attempting to bring their claims within the purview of a 2012 Supreme Court case, Arkansas FGC v. U.S, where a landowner (the State Fish & Game Commission) prevailed on its claim that the Corps had physically taken a flowage easement over its land.  The case raised a unique set of facts and the decision is a remarkably narrow one, and it is completely inapposite to what happened on the Missouri River.  Here’s why.

Natural floods, unnatural disasters

Flooded Greenville, Mississippi, 1927
(MOMA)

Following up on yesterday's post on their Mississippi River Tragedies: A Century of Unnatural Disaster, here's another post from Christine Klein and Sandra Zellmer (re-posted from The Hill):

President Obama recently signed a controversial bill that will directly affect the safety of millions of Americans. The fine print is so complicated, though, that it’s hard to predict exactly how our safety will be affected.

Some say that the Homeowner Flood Insurance Affordability Act of 2014 brings desperately needed relief to property owners who face ruinous increases in their premiums for federal flood insurance. To supporters like Sen. Schumer (D-N.Y.), the law preserves the American dream of homeownership from ill-conceived intervention by “an irrational Washington force.”

Others see the new law as election-year pandering and a cowardly reversal of course. Just two years ago, Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 in direct response to catastrophic damage from Superstorm Sandy. The 2012 law prescribed strong medicine to salvage the solvency of the flood insurance program from a shortfall of some $25 billion caused by insurance payouts after Sandy and Hurricane Katrina. Before its rollback on Friday, the 2012 law would have quickly phased out federal subsidies until owners of flood-prone properties paid the true actuarial costs of their insurance. Some (but not all) properties that had been receiving subsidies saw 25 percent rate hikes.  The 2012 law also required more accurate, up-to-date floodplain maps so that people could easily identify dangerous areas, but the new law relies on obsolete maps to assess premiums on existing homes.

It’s impossible to understand this legislative zigzag without understanding our century-long experiment with federal flood control.

Beginning early in the 20th century, Congress tried to engineer the nation out of danger by spending well over $100 billion (in current dollars) on federal levees and dams. But no structure is foolproof, and all have their limits. As one engineer explained, there are two kinds of levees: “Those that have failed and those that will fail!” Case in point—Katrina, a mere Category 3 hurricane, made short work of the Industrial Canal and the 17th Street Canal levees.

Dirt lawyering and environmental history

(Adam Wolkoff's third post on teaching the history of law and the environment. Links to the rest of the posts are here.)

One of the hardest things about switching from the discipline of history to the study of law is learning how to slow down. Undergraduate and graduate history students read hundreds of pages a week, learning to analyze a monograph or article by figuring out its main arguments and reviewing its evidence to see if those claims hold up. They also become adept at synthesizing large bodies of historical literature to better situate the primary and secondary sources they read into those frameworks.

These skills should translate well into law school and to the categorical reasoning it purports to teach. But law school is not a BarBri cram course. Yes, students obsess over their outlines before final exams, trying to fit everything they’ve learned into a logical framework so they can be ready for the absurd fact patterns their professors throw at them. Yet an effective legal outline describes the relational quality of law, rather than a set of black letter certainties. Law students learn that every transaction presents a moment of legal possibility, in which the doctrine accepted as law in the past intersects with the understandings of the parties in the present and their beliefs about what a judge, jury, or the wider community might say in the future.

Contingency makes for compelling history, too, challenging the impulse of many writers and lecturers to produce deterministic narratives about the past. But it also fractures the story, producing histories that can deny the realities of structural power, or give too much authority to specific events or actors. Think about the history books that actually sell at Barnes & Noble: One (month or secretary of state or hockey goal) That Changed the World.

Undergraduate classes teaching law and environmental history can draw on this creative tension to give students new ways of seeing the nature and the built landscape. I’ve always related to the experience that William Cronon describes in his prologue to Nature’s Metropolis of growing up looking out the car window as the landscape shifted from the crowded, polluted, and artificial city to the bucolic countryside. “One of the pleasures of childhood and adolescence,” he writes, “is that one can experience emotions of this sort without worrying too much about their possible contradictions.” By giving students a grounding in the laws and practices underlying these landscapes, we not only dispel the illusory walls between urban and rural, nature and artifice, but help them understand the legal devices that define them.

It’s teaching the art of what real estate practitioners call “dirt lawyering,” helping students see

Air and ground rights
Marcel Breuer's proposed Grand Central tower (1968)
Breuer Papers (Smithsonian)

the principles underlying the landscape and the events that put those rules to the test. Nearly every class I teach seems to begin with drawing that square that property professors call Blackacre. It’s our platform for understanding what novel impositions people brought to the landscape in each era and how they contested them through formal and informal means. For the curious, it’s a skill that helps solve the mysteries of everyday life and its inequalities. “Why are there so many chemical companies and refineries in North Jersey?” my students asked. “Why are there no Whole Foods in Newark?” “Why don’t brownfields get cleaned up?” Even for those who never plan to be activists, teachers, or lawyers, “dirt lawyering” will be there whenever they sign a lease, build a fence, or look out their front windshield.

Legal geography

(Adam Wolkoff's second post on teaching the history of law and the environment. Links to the rest of the posts are here.)

Environmental history courses present fascinating questions about scale. Ted Steinberg’s synthetic Down to Earth (2012), which I use as my primary textbook, opens on a geological time frame, asking readers to think about how the latitudinal orientation of North America, the evaporation of its great inland sea, the rise of the continental divide, and the journeys of glaciers shaped the rise of its civilizations. But the core of his narrative are case studies of how ordinary people like fishermen, poachers, coal miners, and farmers understood their connection to nature.

Nineteenth-century Hudson River School paintings, like Thomas Cole’s View from Mount Holyoke, Northampton, Massachusetts, after a Thunderstorm—The Oxbow (1836) nicely illustrate the question of scale. These are not impressionistic landscapes: foreground and background are rendered in crisp detail, and the viewer decides whether to linger on the details of the artist’s painting kit or to widen his or her

view of the magnificent scenery. But Cole’s decision to take in everything the human eye could see from Mount Tom strongly directs the viewer’s attention toward the wider scale, in which unseen farmers have deforested, gridded, and cultivated a floodplain. 

The scope of an environmental history class is also a pressing subject. As an Americanist, I structure the course around a survey of the major events shaping the place we now call the United States. In other words, what were the connections between law and nature in Colonial New England, or along the Erie Canal during its years of industrial development? Most students come to class with a basic timeline of these events in their heads, so the class offers an opportunity to deepen their appreciation of these changes as legal and environmental events. 

An alternative approach would be to gather case studies of environmental phenomena across global regions and compare how different societies regulated those conditions. Comparing land tenure systems is a classic way to understand a social and political order, as are histories of water, forestry, and sub-surface mining rights. But because of the multiple interdisciplinary challenges of teaching a globally-oriented course—comparative history and law—teaching this course in a coherent way demands a collaborative synthesis across many fields, which, to my knowledge, does not exist: history, law, anthropology, sociology, environmental science, and other sources of customary environmental practice. 

Teaching the history of law and the environment

I’d like to thank David Schorr for inviting me to post my thoughts on teaching law and environmental history, and for his work in developing this blog, which I have found to be a vital resource for keeping up-to-date on this rapidly developing field.

“Legal Issues in Environmental History” was a course description developed by the New Jersey Institute of Technology’s innovative undergraduate program in Law, Technology, and Culture, headed by legal historian Alison Lefkovitz. The goal is to teach students how humans have regulated and managed the natural environment in North America from the colonial period to the present. 

By looking at the evolution of environmental rules from customary use rights to modern state-based regulation, students learn how ideas about nature, law, and the market have changed over time. Hopefully, they leave the class with a better sense of the possibilities and pitfalls that surrounded the federalization and, increasingly, the globalization of environmental law.

I’ll start this discussion by suggesting what the course doesn’t do. As you can see in the syllabus, the course tries to avoid a teleological history of federal environmental law that follows a path from the shortcomings of local governance to the virtues of a national system. Instead, it assumes that people in each period of American history we study had particular rules about environmental management and analyzes how these practices were grounded in the social, cultural, political, and economic conditions of their time and place.

As a result, the course steers away from instrumentalist explanations for changing practices of governance. I use historical examples to introduce important theories about legal and environmental change (Marxism, the “Release of Energy,” or the ever-popular “Tragedy of the Commons”), but leave it to the class to decide whether the facts support these approaches.

Frank Leslie's Illustrated Newspaper, Aug. 13, 1859
(from Ted Steinberg, Down To Earth (2002), 161)

Finally, using Dirk Hartog’s classic article "Pigs and Positivism" (1985) as our theoretical starting place, I try to shift the conversation away from sharp lines between “law” and “custom” and toward questions about nature and power. As a result, the course integrates topics, such as labor history or the role of gender and race in shaping law, that ordinarily get left out of environmental history courses focused on land use, pollution, and resource extraction. It also leaves space to discuss non-elite views of law and nature.

In an upcoming post, I’ll write about some of the topics discussed in the class and the theoretical and practical problems of teaching them.

[Links to all of Adam's posts are here]