The right to nature in 1880s Ireland

Just out in The Historical Journal is "The Right to Life, the Right to Nature, and the Impact of Irish Land on Political Thought in the 1880s" by Andrew Phemister. The abstract:

The Irish Land War was a pivotal conflict in the history of liberal political thought. With significant impacts on both sides of the Atlantic, events in Ireland were about more than Irish self-determination. Heavily reliant on a discourse of natural right, and asserting a relationship between land ownership and democratic-republican citizenship, the Land War provided a vehicle for popular radical opposition to an increasingly positivist liberalism. This article examines the rationales and political assumptions underlying the demand for land, and how such arguments catalysed an intellectual response among liberal political thinkers. Particular moral and metaphysical ideas about the distinctiveness of land allowed agrarian and labour radicals to reassert individualized but non-possessive rights to natural resources. Rooted in a materialist politics of the human body, this purposive conception of land posed a significant threat to claims for private property, social order, and the ameliorative authority of the state, pressing both liberal and conservative thinkers away from unstable notions of individual rights. The crisis over Irish land helped to shift the terrain of political argument away from questions of participation and popular power, and toward amelioration and public welfare.

Yom Kippur, Maimonides and greenhouse gas regulation

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

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

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

Maimonides

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

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

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

May we all be sealed in the book of life.

Savagery, civilization, and property VI: Conclusion

In the last post we looked at how stadial thought reached modern commons thought through the worlds of colonial development and conservationism. This post concludes the series.

I have argued in this series of posts that various strands of modern commons theory, though based, as well, on novel theoretical and empirical work, seem to lean heavily on the structures, examples, and sensibilities of stadial theories of civilization that rose to prominence in the late eighteenth century. These Enlightenment-era ways of thinking are admittedly outmoded as theories of history, but why should the historical sources of current theory matter?

Beyond the important goal of understanding the sources of our theories, foregrounding the continuing influence of stadial thinking on current theories of the commons should help us question some aspects of these theories by highlighting some of their oddities — such as the disproportionate weight of studies of hunting, herding, and the like among a far more diverse universe of commons situations that could be studied.

Possibly more important are the residues of the narrative of civilizational progress that continue to adhere to property theory. Carol Rose has noted ("Evolution of Property Rights", in 2 The New Palgrave Dictionary of Law and Economics 93, 94 (1998)) the quasi-religious belief in the advantages of private property held by some property theorists, especially those associated with the modern law and economics movement, according to which “an evolving property rights regime might lead humankind toward a new kind of earthly Paradise,” “a secular Eden of peace and plenty.” Rose’s own work, as well as that of some of the other commons theorists surveyed above, is free of this bias, remaining pointedly agnostic as to the direction of evolution among property regimes. But others — not only law and economics types but Hardinians and others — seem to accept (though they might not put it in these terms) that private property represents a more advanced stage of civilization than does the commons. This type of thinking lies at the root of many neoliberal policy prescriptions, from the importance of secure private property regimes to developing countries to the salience of cap-and-trade as a solution for climate change and other environmental problems.

Lucas Cranach the Elder, The Garden of Eden (1530)

On the other hand, the Romantic and Marxist reactions to the Enlightenment stories of stadial progress continue to inform another set of prescriptions and critiques, most prominent among them the many studies of successful indigenous commons management following Ostrom’s work. Whatever the normative and ethical attractions of these positions, it seems that their appeal rests partly on a narrative of fall from grace, a sort of negative image of the economists’ story described by Rose, and a yearning to return to an Eden of primitive and community-based commons.

Finally, on a more general level, I would like to highlight the central role that historical narratives or myths continue to play in nominally theoretical and normative scholarship. Myths are important, but so is clear-headed thinking about policy. By recognizing the myths on which much commons scholarship is built, we might be able to improve it.

I'd be happy for readers' thoughts. The full article is here.

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:

The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.

The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.

It seems that Toulmin Smith's anti-regulatory agenda also made him something of a cholera skeptic:

Compensatory mitigation and neoliberalism

Restored perennial and season marsh and riparian forest
at Wildlands Mitigation Bank, Placer County, California (EPA)

The always interesting Dave Owen recently posted "The Conservative Turn Against Compensatory Mitigation", whose primary subject is the recent turn described in the article's title (compensatory mitigation is a policy that require parties receiving permits for environmentally harmful activities to compensate for them by improving environmental conditions elsewhere). Owen also has something to say about the origins of the practice, rejecting the arguments of critics who have portrayed compensatory mitigation as part of a neoliberal, capitalist resurgence:

The proponents of compensatory mitigation reform hardly ever identified their efforts as measures to boost the capitalist system. As one retired departmental employee explained to me, even during the Reagan Administration, debates about compensatory mitigation were driven more by conflicts over regulatory intensity and states’ rights rather than by Milton Friedman-style market ideals. And later reformers’ key goal was to strike a compromise between political mandates to accommodate economic development and legal mandates to protect the environment, and to make permitting decisions in an expedited fashion. Compensatory mitigation policy, in other words, evolved to fulfill agency goals, not to advance a free-market agenda, even though the policies did sometimes bring regulated industries the benefits of expedited and more flexible permitting.

I have to say that I don't find this very convincing, though it is true that compensation mechanisms can serve as a way of balancing interests, as Calabresi and Melamed taught us. First of all, I doubt whether one can get a full and reliable account of agency motivations by interviewing agency sources. Second, as Laleh Khalili points out in a recent interview at Viewpoint, officials and managers often work to advance capitalism without being conscious of it. Finally (and relatedly), I would posit that regulators " driven... by conflicts over regulatory intensity and states’ rights" were in fact often responding to "Milton Friedman-style market ideals" (whether they realized it or not). "States' rights" and "regulatory reform" are ideas the popularity of which in the last few decades owe a lot to business interests, politicians, and intellectuals pushing a neoliberal, capitalist agenda. It is no surprise that "agency goals" meshed with the neoliberal agenda (or that the recent conservative about-face on compensatory mitigation exposes the essential bad faith behind much of "regulatory reform").

LBJ's environmental legislation

A recent issue of Federal History has an article by Nancy Germano, "Negotiating for the Environment: LBJ's Contributions to the Environmental Movement". From the article:

Environmental historian Martin V. Melosi refers to the Johnson administration as "a transitional force in the evolution from old-style conservation to modern environmentalism." This article presents evidence in support of Melosi's statement by showing that the Johnson presidency, typically associated with civil rights, the War on Poverty, and the Vietnam conflict, also created an environmental legacy. In addition to a record number of federal laws directed at protection of natural resources, Johnson's rhetoric and actions set the stage for American environmentalism. He, along with Lady Bird Johnson, initiated new conversations and approaches for natural resource protection and shaped environmental advocacy for the nation. In the process, Johnson generated an enduring conviction that environmentalism and individualism-the individual's claimed freedoms and property rights-could thrive hand-in-hand.

This article explores two legislative campaigns during the Johnson administration-urban beautification and protection of wild and scenic rivers-that exemplified the president's stance on natural resource conservation. These campaigns demonstrated the priorities of environmental "restoration," cleanup, and stewardship later adopted by the environmental movement. By generating public participation in environmental programs and fiercely negotiating the possible outcomes, Johnson's approach and recommended strategies prefigured the work of environmental activists.

Germano notes:

In addition to those discussed in this article, laws relating to the environment signed by Johnson include the Clean Air Act (PL 88-206), Pesticide Control Act (PL 88-305), Wilderness Act (PL 88-577), Land and Water Conservation Fund Act (PL 88-578), Fire Island National Seashore (PL 88-587), Canyonlands National Park Act (PL 88-590), Water Resources Planning Act (PL 89-80), Water Quality Act (PL 89-234), Solid Waste Disposal Act (PL 89-272), Water Pollution Control Act (PL 89-753), Guadalupe Mountains National Park Act (PL 89-667), Endangered Species Act (PL 89-669), Indiana Dunes National Lakeshore Act (PL 89-761), San Gabriel Wilderness Act (PL 90-318), and Great Swamp Wilderness Area Act (PL 90-532).

Law in the Anthropocene? Maybe not

Eric Biber recently posted a series at Legal Planet based on his recent Georgetown Law Journal article, "Law in the Anthropocene Epoch" (abstract below). The Anthropocene, for those who have somehow missed this buzzword, is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument.

First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater government involvement", etc.) seems to me problematic, reflecting an environmental-determinist and functionalist view of legal development that I find unconvincing. Many of the challenges identified by Biber have been with us for some time, and the law has apparently not adapted to them. It is not clear that it must or will do so in the future. I think a more tentative or even a normative tone would have made for a more convincing argument.

Second, Biber's use of "the Anthropocene" is idiosyncratic. Many proponents of the idea of an Anthropocene epoch seem to have settled on a start date in the mid-twentieth century, though others (including the originators of the idea) argue for an 1800 start, and others would push it back even further. In any case, if there is an Anthropocene, we are already in it, the challenges identified by Biber are already upon us (with many of them hundreds of years old), and so if, as he argues, the law will change in response to them, it should have already done so. If the Industrial Revolution took place during the Anthropocene, it is hard to make sense of his argument that "These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries."

The commons imaginary

I recently came across what seems to me a really important article, John Wagner's "Water and the Commons Imaginary", published in 2012 in Current Anthropology (along with a series of responses by other social scientists of the commons, including Elinor Ostrom, in what must have been one of her last writings). The abstract really doesn't do justice to the article's central argument, so I'll bring some excerpts here (citations omitted):

The term “commons” has been appropriated over recent decades by individuals, corporations, and interest groups seeking to benefit from the positive emotional responses that the term seems to evoke. In some cases—shopping commons, for instance—use of the term appears to be mainly a marketing strategy, but in other cases the term carries a definite political argument, most typically an argument against commodification, privatization, or enclosure and in favor of egalitarian, grassroots approaches to resource management. It is at this point that a clear break occurs between commons as a particular kind of institutional arrangement and commons-as-social-imaginary.

In applying the term “social imaginary” to the commons, I rely especially on the work of Benedict Anderson on imagined communities and of Appadurai on imagination and globalization. Commons constitute a very different kind of imagined community than a nation-state, but much of Anderson’s analysis is applicable nevertheless.... 

The commons imaginary can... be understood as a response to... fundamental changes in our social, economic, and political lives, particularly those associated with economic globalization, the accelerated pace of erasure of place-based communities and social identities, and global environmental and economic crises. The commons imaginary, like the nation-state, is also dependent for its construction on print and electronic media. The recent proliferation of the use of the term “commons”... clearly attests to the manner in which it is being constructed.

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

Love Canal, CERCLA, and deregulation

This past summer H-Environment published a Roundtable Review of Richard Newman's Love Canal: A Toxic History from Colonial Times to the Present (OUP, 2016). An excerpt from Stephanie Malin's contribution:

While the Superfund Act [CERCLA] resulted from national awareness of Love Canal, and though Newman focuses on the success that legislation represents, we conclude with a troubling denouement. Love Canal is now Black Village Creek, filling up with a new round of working-class residents enticed by homes priced 10 – 20% below market value. Though former residents including Gibbs fought the relocation, they lost this battle. Developers won. The results have been tragic; as Newman recounts, health problems and toxic exposures have reemerged in this ‘remediated’ community, despite the extensive, state-of-­the-­art environmental engineering schemes used to filter leachate and otherwise remediate the site.

Newman’s Love Canal succeeds in highlighting for readers an exceptionally timely notion: before the institutionalization of the U.S. Environmental Protection Agency’s Superfund Program, the American landscape was riddled with unregulated, unmonitored, and often unknown chemical and industrial dumps from America’s dizzying participation in the Industrial Revolution. Communities like Love Canal that dealt with these historical mistakes, Newman shows, contended with rampant pollution, contested and rare health outcomes, and instances of deep disempowerment. Newman showcases for his readers the immense risks and voluminous unintended consequences that emerge when environmental regulations are absent and when the precautionary principle is eschewed in favor of industrial economic development, in one era after another. His historical details, and his careful examination of the numerous barriers faced by Love Canal activists, display that regulatory programs that protect public and environmental health are relatively new, have been hard won, and are constantly vulnerable to eradication. Indeed, these are the very programs that have most swiftly come under attack under the Trump Administration – which makes Newmans’s message so relevant and timely. 

Trump, Carl Schmitt, and climate change denial

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

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

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

*****

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

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

*****

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

The political is inviolable

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

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

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

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

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

Water management and American liberalism

Water Alternatives recently published a review by Joe Williams of JJ Schmidt, Water: Abundance, Scarcity, and Security in the Age of Humanity (NYU Press, 2017). From the review:

The central argument – which might rankle were it not so meticulously made – is that as critical hydro-social scientists we have been getting things wrong for years. Schmidt contends that the old story about the separation of society and nature under modernity and the entrenchment of binary Enlightenment thinking does not apply to water management. The conceptual starting point of many critical scholars, of the transformation of naturally occurring and materially messy 'water', to the industrial product 'H2O', delineated, separate from nature, is, according to Schmidt, a false premise. The logic of water management conceived in the United States in the late 1800s, that has since spread across the world, has instead always connected human society, through water, to the land and geological history in particular and politically significant ways. "The difficulty", he argues, "is not a society/nature dualism or even unique human agency. Rather, the problem is the historical attempt (and ongoing consequences) of a failed strain of social science in the United States that sought to do away with the society/nature dualism" (190). This philosophy of water, through which American (and now global) societies are intimately connected to the land, is given the conceptual handle of 'normal water'. By this, Schmidt refers to the "program of bringing water’s social and evolutionary possibilities into the service of liberal forms of life" (6). Normal water, then, describes a normalised and entrenched set of socio-cultural practices, economic conventions, technological and institutional structures, and geological processes, that link together human society, biological life and planetary evolution under the logic of liberalism. The book traces the development of normal water through its inception at the beginning of American expansionism, its internationalisation under post-war development, and into the Anthropocene.

The political, techno-institutional and conceptual emergence of normal water, according to Schmidt, is premised on three assumptions: "that water was once abundant, that it has now become scarce, and, as an outcome of mismanaging scarcity, that water is now an issue of security" (41). The book is correspondingly structured into four parts. Part one, Abundance, concerns the framing of water as a resource central to the development of American society. It focusses on several key figures associated with the Washington DC-based Cosmos Club around the end of the nineteenth century and beginning of the twentieth, notably W.J. McGee and John Wesley Powell. Water was seen by these men as having geological agency that, if combined with human agency, could form the basis of the most advanced form of liberal society. The driving principle of normal water in the era of abundance, Schmidt says, was that the agency of water could be "synced with the coevolution of American society and the mutual adjustments that water and society made to each other" (79). In an attempt to cement American independence from European colonialism, W.J. McGee even proposed that currency should be tied to water rather than the gold standard. In this respect he was unsuccessful, but the corresponding principle that water was a public good that should be managed for 'the people', Schmidt argues, has formed the bedrock of normal water.

Beach access and American conservatism

Bixby Creek Bridge near Big Sur, California
(Bill Lane Center for the American West)

The issue of public beach access has played a major role in the history of environmental law (see, e.g., here, here, and here). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism". The article opens:

In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order to protect the state’s coastline from environmental damage and overcrowding. The commission ruled that Consiglio’s house would block the view of the ocean from a nearby highway, disrupt a path to a rocky cliff above the sea, and reduce public access to the beach below the development site. Using powers that had been delegated to it by the state legislature, the commission denied Consiglio’s application for a building permit. Consiglio could continue to own this scenic property overlooking the Pacific Ocean, but she would not be permitted to build a home there.

Consiglio eventually sought help from the Pacific Legal Foundation, a nonprofit, “public-interest” legal foundation established in 1973 by Ronald Zumbrun, a former aide to California governor Ronald Reagan, with help from several prominent California lawyers and businessmen. Zumbrun’s organization photographed the gray-haired woman, standing on a rocky cliff overlooking the Pacific surf, and put the image on the front page of its bimonthly newsletter. The accompanying article, titled “What Happened to the American Dream?” began: “Viktoria Consiglio, unhappy, confused, and angry, wonders what happened to her dream of owning a home by the sea. A dream that has turned into a nightmare of government red tape and legal costs that have taken a big chunk of her income from her job as a clerk-bookkeeper.” Lawyers at the foundation prepared to file suit, on the grounds that the Coastal Commission’s decision was inequitable, unjustified by law, and interfered with the woman’s property rights. The state of California may have certain powers to zone or plan for new development, the foundation argued, but it could not render this woman’s property nearly useless to her. 

Gorsuch and Hamburger

A few months ago we noted some of the environmental dimensions of Philip Hamburger's revisionist account of the history of administrative law. Now Eric Posner points out some contemporary relevance of Hamburger's controversial views (thanks to Legal History Blog for flagging the post, and to Eric for approving the re-post):

Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?

Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.

I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.

In rereading Hamburger, I am struck by three themes, which resonate with our political times.

Trends in environmental regulation

(Fortnightly Magazine)

The 2016 Annual Review of  Law and Social Science had an article by Neil Gunningham and Cameron Holley, "Next-Generation Environmental Regulation: Law, Regulation, and Governance". Once you get passed the odd description of environmental law, along with design standards such as best available technology, as "conceived in the 1970s" and the odder tracing of the origins of command-and-control regulation to the creation of Yellowstone National Park in 1872, the article goes on to map the changes in environmental regulation in recent decades. The abstract:

This article analyzes more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It shows how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved — their most important manifestations being pluralistic regulation, new technologies, compliance, and new governance. It shows how each of the frameworks examined proposes its own solutions and has something valuable to offer, as well as its own limitations. The article concludes by discussing a fundamental challenge confronting the field, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrum.

The authors' evaluation of the attack on traditional regulation in recent decades (citations omitted):

Broadly speaking, these state-centered approaches to law were relatively effective, achieving several gains in halting and reducing environmental degradation. Indeed, a range of findings suggest that state law approaches are the single most important driver of improved environmental performance, particularly of large industries. 

Nevertheless, by the 1980s direct law was widely criticized for being inflexible and excessively costly. At the international level, treaty congestion and fragmentation led to claims that international environmental law was unwieldy, incoherent, and ineffective in confronting increasingly serious global environmental challenges. Similar claims were raised at the domestic level, where the centralized and uniform nature of command and control was increasingly maligned as costly, cumbersome, inefficient, and insensitive to local contextualities.

A major source of these command-and-control critiques were business groups, who called for a reduction in the economic burdens that compliance with environmental law placed upon them. Adversarial enforcement by deterrence-oriented agencies, primarily in the United States, did little to allay these concerns and produced counterproductive resistance from regulated businesses and individuals.

More Polanyi, and international environmental law

Karl Polanyi seems to be making a comeback on the pages of the Journal of Environmental Law. Alongside Ben Pontin's review essay discussed here yesterday is Jeffrey McGee and Jens Steffek's "The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law". They write:

Since its inception in 1992, the United Nations (UN) climate regime has made a key ontological distinction between ‘developed’ and ‘developing’ countries....

***** 

However, the outcome of the UNFCCC COP 15 meeting, the ‘Copenhagen Accord’, radically changed the nature of the promises made by countries about reducing greenhouse gas emissions. Instead of requiring developed countries to adopt more ambitious and legally binding emission reduction targets, the Copenhagen Accord invited all countries to simply make non-binding pledges for the period 2013–20. Binding targets and timetables for emission reduction, for developed or (the more advanced) developing countries, had fallen off the negotiating table. The Copenhagen Accord thus provided a radically different architecture for the future of global climate governance than that established under the Kyoto Protocol. This was reaffirmed at the 2012 UNFCCC COP17 meeting in Durban when the formulation of a future global climate change regime ‘applicable to all Parties’ became diplomatic shorthand for a ‘political expectation that the climate regime must contain greater symmetry in the commitments’ between developed and developing countries. 

***** 

The historical and theoretically grounded analysis of the Copenhagen turn provided here necessarily operates at the intersection between legal doctrinal analysis and the interdisciplinary perspective provided by historical economic sociology. Our methodological claim is that in order to understand the outcome of the Copenhagen COP 15 meeting it is necessary to embed the doctrinal understanding of emission reduction commitments in the UNFCCC within the wider context of the ongoing history of distributive conflicts between developed and developing countries in the post-World War II period. It is only through the lens of these distributive conflicts between developed and developing countries, which are best viewed from the perspective of historical economic sociology, that the pattern of prescriptive formal differentiation of commitments on emission reduction before Copenhagen, and the subsequent breakdown in this pattern at Copenhagen, can be fully understood.

The starting point of our analysis is Karl Polanyi’s 1944 classic in historical economic sociology, The Great Transformation. Polanyi’s key insight was identifying a dialectical ‘double movement’ in the historical evolution of Western societies which centred on an alternation of efforts to disembed markets from society and re-embed markets into society. In other words, Polanyi identified in Western society phases of economic liberalisation and market-making (which disembed markets from society) contrasting with periods of political interventionism (to re-embed markets within society). Drawing on Polanyi’s work, John Ruggie identified a historical post-war compromise between global market-making and political interventionism which he coined ‘embedded liberalism’. This term describes a design for global governance that was based, on the one hand, on an international division of labour and the notion of the comparative advantage that was encouraging the making of global markets and trade liberalisation. On the other hand, embedded liberalism also allowed states sufficient discretion in domestic policymaking to cushion their economies and citizens from the more adverse effects of international liberalisation.

However, the historical compromise of embedded liberalism was unsatisfactory for developing countries. During the 1960–70s developing countries, therefore, called for an alternative design for the institutions of global governance, described by Steffek as ‘redistributive multilateralism’ (RM), in which international market activity was embedded within international society by differentiation of obligations and international transfers of wealth from developed to developing countries. The United Nations Conference on Trade and Development (UNCTAD) was the first global institution to exhibit a RM design. The differentiation of obligations between developed and developing countries in the UN climate regime might also be viewed as an important instance of RM. However, we claim differentiation of obligations in the UN climate regime is in significant conflict with the neoliberal principles that have come to dominate international governance in recent decades and that largely supplanted post-war ‘embedded liberalism’ in the West. We, therefore, contend that focussing on this historical tension between neoliberal and redistributive designs of institutions offers a new and important perspective on the shift in global climate governance that occurred in 2009 at Copenhagen.

The Copenhagen COP 

The environment and the Great Transformation

                  (from famouseconomists.net)

The latest Journal of Environmental Law has an interesting review article by Ben Pontin on two books: Michelle Maloney and Peter Burdon, Wild Law—In Practice (Routledge, 2014); and Bettina Lange, Fiona Haines and Dania Thomas (eds), Regulatory Transformations: Rethinking Economy–Society Interactions (Hart Publishing, 2015). Pontin writes:

This review article compares ‘Wild Law’ and Polanyian critiques of modern day environmental regulation, drawing on two recent edited collections. Each critique unfolds within a rather different intellectual tradition, but there are nonetheless important areas of common ground that justify reading the two together. One area of common ground is a concern with the regulation of social and economic impacts on the natural environment in the context of what it means to be ‘human’. Polanyi did not in his lifetime receive the credit he deserved for being among the very first to write explicitly about regulation in relation to ‘human beings and their natural environment’. This was decades before the word ‘environment’ entered into the lexicon of policy and law in the USA (National Environmental Policy Act 1969) and the UK (Environmental Protection Act 1990). To this extent the catchy neologisms of Wild Law (‘Earth Jurisprudence’, ‘Earth Community’, ‘Earth Governance’, ‘Earth Justice’ and of course ‘Wild Law’ itself), are building on a Polanyian heritage.

A second key area of common ground concerns the limitations of markets as a means of structuring economic and social relations. While neither standpoint rejects markets as means of conducting economic transactions up to a point, each is predisposed towards modes of regulation that are embedded (using Polanyi’s language) in ethical values, rather than the profit motive. Polanyi arrived at this market-critical position from a historical perspective, but as one contributor to the collection by Lange and others points out, Polanyi was preaching to the converted in criticism of 19th-century ideology in the 1930s and 1940s. The difference with Wild Law and modern exponents of Polanyian ideas is that they are facing a renaissance of classical political economy (so-called ‘neo-liberalism’), which is evidenced by an approach to environment regulation based on creating new markets in environmental ‘goods’. This is illustrated in areas such as nature conservation and climate change (eg tradeable biodiversity and carbon credits, respectively), and more broadly by the treatment of economic growth as a bottom line within environmental policy. Much hinges, therefore, on the guile with which these two critiques are articulated (including the scope for learning from one another where possible).

Introducing Polanyi to a legal audience that is largely unfamiliar with his work is a primary aim of the collection of Lange and others, and it is done well. By way of the briefest of distillations, Polanyi’s leading work is The Great Transformation (first published in 1944). In it he tells the story of colossal policy failure, when—in 19th-century Britain—the legislature and courts were persuaded to put into practice Adam Smith’s theory of meeting a nation’s needs through the invisible hand of the free market. That entailed the repeal of protectionist legislation (notably corn laws), and the introduction of economically liberal reforms to statute and common law relating to labour and care for the poor and vulnerable. Polanyi’s achievement was to have grounded a theory of regulation in the experience of this laissez faire experiment:

"Before the process [or planned marketisation] had advanced very far, the labouring people had been crowded together in new places of desolation, the so-called industrial towns of England; the country folk had been de-humanized into slum dwellers; the family was on the road to perdition; and large parts of the country were rapidly disappearing under the slag and scrap heaps vomited forth from the ‘satanic mills.’ Writers of all views and parties, conservatives and liberals, capitalists and socialists invariably referred to social conditions under the Industrial Revolution as a veritable abyss of human degradation."

Polanyi argued that this refuted Smith’s account of human beings as natural traders, with an instinct to bargain their way through life in search of personal material improvement. The universality of condemnation (‘writers of all views and parties’) suggested to Polanyi a naturally spontaneous resistance to free trade. Christopher Decker coins a distinction between Smith’s and Polanyi’s understanding of the human being in terms, respectively, of ‘economic man’ and ‘whole of man’. This makes for an interesting framework for exploring the differences between the Polanyian and the Wild Law critiques of markets (Wild Law looks to more than the ‘whole man’).

Polanyi uses the concept of a ‘double-movement’ to capture the transformation of society during the industrial revolution, and this is among the frames of reference of Lange and others’ collection. Economic relations, Polanyi argued, are naturally embedded in social ones, such that their ‘dis-embedding’ (as a consequence of the experiment with the theories of Smith and the wider Manchester School) elicited a ‘counter movement’, in which the economic sphere was re-embedded in the social sphere by means of regulation.

There's plenty more interesting discussion here.

A pollution market in history

I recently came across a 2014 dissertation by Krystal Tribbett, "RECLAIMing Air, Redefining Democracy: A History of the Regional Clean Air Incentives Market, Environmental Justice, and Risk, 1960 -- present". The abstract:

Depending on whom you ask, the Regional Clean Air Incentive Market (RECLAIM), the nation's first regional smog market, is either a revolutionary approach to cleaning the air of the South Coast Air Basin, the most polluted region in the country, or a failed social experiment that put the interests of business and the marketplace above public health. In its original iteration, RECLAIM rules were intended to produce emissions reductions consistent with the command-and-control approach to compliance embodied in an Air Quality Management Plan, but with greater efficiency, effectiveness, and flexibility—a goal RECLAIM in large part met. In an ideal application of emissions trading, public welfare and economic growth should have been jointly protected, and previous studies of RECLAIM have focused on the normative implications of the program, condemning suspected environmental injustices or praising economic efficiency without exploring the significant historical roots of market-based solutions. A closer look at these historical roots reveals the ways in which RECLAIM actually succeeded in improving air quality through difficult compromises and negotiations by regulators, environmental activists, politicians, and businesses.

This dissertation recounts this fuller history. It is about the history of market-based mechanisms to control air pollution in Southern California, and, in a broader sense, the history of neoliberalism and the process of neoliberalising nature. It traces the history of American air pollution laws from the 1960s to the present and finds a symbiotic relationship between federal and state governing bodies that led to the establishment of RECLAIM. The history told here shows that the development of RECLAIM was not wholly neoliberal, imposed intentionally by policymakers, venture capitalists, or academics with a neoliberal agenda. What emerged out of the archives and newspapers was a story of the organic evolution of markets to address air pollution that was shaped both by political processes and academic/theoretical arguments intended to find a compromise between public demands for clean air, political concern about economic growth, and industry pushback against regulation. This dissertation thus argues that in the United States neoliberal policies to govern nature are outcomes of struggles to balance societal values (like clean air) with political, economic, and scientific realities.

Property in the Prussian forest

The recent issue of Environment and History had a review by Charles Closmann of Jeffrey K. Wilson, The German Forest: Nature, Identity, and the Contestation of a National Symbol, 1871-1914 (U. Toronto Press, 2012). After discussing the book's treatment of German cultural attitudes to the forest, Clossman writes:

Subsequent parts of the book examine debates about how to manage Germany’s forests. Drawing from minutes of the Prussian Landtag, Wilson shows how conservative landowners supported what they considered to be modern definitions of property rights in debates over an 1880 Prussian Forest Law. On the other side, left liberal critics supported the public’s traditional right to wander freely in the woods, collecting timber for fuel, gathering berries, and picking mushrooms. A subsequent chapter traces debates over Berlin’s Grünewald, with Wilson demonstrating again how left-liberal and some working class critics demanded that the Prussian state preserve a major forest in the city’s outskirts. In this case, enthusiasm for a beloved forest stemmed not from irrational anxiety about modernity, but in part from a desire to enhance recreational opportunities for the working class. Wilson notes, ‘The struggle to protect the Grünewald demonstrates the rational and progressive aspect of the forest discourse’ (p. 131).

Support for forest preservation also came from the state, for different motives. In chapter five, Wilson shows how Prussian state foresters attempted to restore the degraded forests of the Tuchel Heath, in the Prussian East. In this case, state officials intended to scientifically manage the region’s forests and to discipline what they saw as an ethnic Polish population desperately in need of German Kultur. A dramatic story of heroes, thieves and frustrated officials, the story of the Tuchel Heath is well-supported with documents from German and Polish sources, and with lively illustrations from Oskar von Riesenthal’s Bilder aus der Tucheler Heide. 

See here for an earlier article by Wilson on a similar subject. For more on German working-class environmentalism, see here.

Public property in Imperial Russia

Ivan Bilibin, Vasilisa the Beautiful at the Hut of Baba Yaga

A while back we noted the LSA's honorable mention for of Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014) and expressed the hope that we'd hear more about the book soon. The American Historical Review answered our prayer; its latest issue has a review by John Randolph. Some excerpts:

Pravilova perceptively observes that although historians have long debated the status of private property in Russia, little attention has been paid to public goods, distinct from the domains of the Romanovs and those of their individual subjects. Pursuing this quest for a “res publica in the imperial state” across many cultural realms—from forestry and mineralogy to arts and letters—Pravilova presents it as a powerful force in late imperial life. Though only fitfully realized before the October Revolution, this ambition encouraged the prominence of “rule by experts” in Russian statecraft, a heritage handed down to the Soviet state. It also stimulated popular demands to institutionalize the common good, expropriating it where necessary from private hands. Indeed, Pravilova argues, the greatest legacy of the search for a public domain in imperial Russia was to present a change in property rights as the essential foundation of progress, obscuring and in some cases occluding other kinds of political and economic reform.

Pravilova's engrossing study opens with a paradox. Liberal theory has long seen rule of law as the foundation of property rights. Yet autocratic Russia, where the sovereign's will was often understood to stand above all law, possessed one of the absolute property regimes in Europe, giving owners sweeping rights to hold, use, and defend their estates. Pravilova explains this by arguing that the invention of private property in its modern form in Russia rested on a promise—made by Catherine the Great and her successors—that property rights were guaranteed irrevocably and inalienably by the autocracy itself. Those who sought to limit private use of natural resources, such as the fish caught on a river or the fallen wood in the heart of a forest, had to argue that the monarch's inviolable and unlimited promise was not so inviolable and unlimited after all. For much of the first half of the nineteenth century, this proved too steep a hill to climb. As a result free Russia became a veritable ownership society. All manner of grand enterprises (capitalist or autocratic) were complicated by the individual rights of myriad landlords. The state-led emancipation of Russia's serfs in 1861 deepened this conundrum, “[leaving] the state face to face with millions of people and new proprietors, who before the reform had been placed under the administration of their landlords” (p. 57).

All the same, in the second half of the nineteenth century this fractured proprietary geography saw its absolute dominion restrained and at points undone by apologists for public property, according to Pravilova. She conceptualizes this shift neither as a purely legal evolution in property law, nor as a public campaign with a specific chronology or set of actors, but as an “ongoing reformist project” (p. 138) that labored, in an uncoordinated fashion, for much of the second half of the nineteenth century. To make this claim, she works across cultural realms with impressive fluidity, showing how similar notions animated agents in arenas as seemingly diverse as hydrology, philology, and church governance. In each of these areas, experts staked claims for cultural patrimony, arguing that a portion of Russia's rivers, religious architecture, and even its poets' private letters had to be reserved, preserved, and managed by the state. Most generally, Pravilova characterizes this “project” as reflecting a tension in the history of liberalism in Russia. Though absolute property rights had been presented by Russia's absolute rulers as an example of imperial freedom, over time society's sense of its own right to develop freely seemed to require the creation of a common inheritance so that Russia could reach its true potential. Pravilova suggests that this imperial “public domain” was far from finished or secure by 1917, but that its ideals nevertheless helped frame the radical solutions Soviet power would bring thereafter as the new state nationalized the empire and empowered science to rule it on the people's behalf.