Jhering and environmental legal history

The German-language legal history journal Zeitschrift für Neuere Rechtsgeschichte last year published Sascha Ohlenforst's article, "Vom Sinn und Nutzen der Umweltrechtsgeschichte. Methodische Überlegungen auf Grundlage der Interessen- und Wertungsjurisprudenz" [On the sense and use of environmental legal history. Methodological considerations based on the jurisprudence of interests and values.]. The abstract:

How to write a history of environmental law that can be integrated into environmental and  legal history? What insights can be gained from dealing with past environmental law? The article discusses and problematizes essential questions of modern legal history and, on the basis of the jurisprudence of interests and values – especially with reference to Rudolf von Jhering –, promotes a possible new orientation of the history of environmental law. Such a method considers above all the different interests of historical actors and reference groups as a major factor of dynamization in environmental law. Examining these interests as social factors not only contributes to a deeper understanding of the particular human-environmental relations in the past, but also provides a detailed insight into the development of law. By consulting a case study on mining law, both the dynamizing factors as well as the continuities and disruptions between past and present law are illustrated.

Sustainability and the history of knowledge

The Journal for the History of Knowledge recently published an article by Sebastian Felten, "Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines". The abstract:

A late-eighteenth-century encounter between Dutch merchants and cameralist Saxon officials is used to argue two related points. First, the history of knowledge can help us rethink hierarchical power structures like the Saxon mining bureaucracy. Mine owners had a right to information and could not be forced to pay contributions, which meant that mining officials were solicitous in sharing knowledge, fretted about investors’ favor, and took their desire for revenue into consideration. These observations directly challenge the traditional absolutist image of the Saxon mining bureaucracy. Second, the history of knowledge can help explain how certain rationalities (that is, combinations of means, ends, and values) came into being. Saxon officials sought to situate short-term income and expense in a success story that spanned decades and centuries. Informed by the concept of Nachhalt (sustainability), Saxon officials saw profit even in mines that lost money. This kind of sustainability thinking is best explained via the archival practices of the mining bureaucracy: officials collected information from yield sheets and local lore in order to calculate long-term outputs, to speculate about untapped deposits, and to disburse as little profit as possible. When the Dutch eventually understood this rationality, they withdrew. Saxony’s early modern mining bureaucracy was dismantled by liberal reforms in 1850s, but its peculiar brand of sustainability, aiming to extract resources at almost all costs, likely survived the dawn of industrial capitalism as young engineers and administrators became versed in it at the Freiberg Mining Academy.

For a different take on the origins of German sustainability thought, see Peter Sand's post here. 

Star vaulting on the ground floor of the Saxon Mining Office, Freiberg
(photo: Norbert Kaiser)

A revised history of Chilean water law

The Chilean water code of 1981 is often held up as a paradigm of private property in water. Thomas Miller Klubock's new article in Environment and History, "The Early History of Water Wars in Chile: Rivers, Ecological Disaster and Multinational Mining Companies", provides some historical context. The abstract:

This article examines an early water war in Chile between local agriculturalists and the North American-owned El Teniente copper mine. It recovers a hitherto unknown history of ecological degradation caused by industrial copper mining during the twentieth century in Chile. It argues that contemporary water wars in Chile, usually viewed as a product of the privatisation of water rights in 1981 and the expansion of foreign investment in the mining sector during the 1990s, combined with the impact of global climate change, have roots in the appropriation of water in Andean rivers by North American companies at the beginning of the twentieth century. The article’s thesis is that the Chilean state subsidised the mining industry by granting water rights and turning a blind eye to mining companies’ contamination of rivers relied on by agriculturalists for irrigation. Finally, the article traces conservationist responses to the ecological crises produced by contamination of water and soil by the El Teniente mine, which was owned by the Kennecott Copper Company. It demonstrates that conservation of water resources was employed by estate owners as a means of asserting private property rights against the interests of mining companies.

Nicolas Schubert, Fundición de cobre en mina El Teniente, Codelco Chile

Protection for polluters

“Roast Yard no. 2” in Copper Cliff (c. 1903),
providing a good idea of the damage the heap roasting inflicted on the local environment
(City of Greater Sudbury Heritage Images, Copper Cliff Museum Collection, CC0115)

Mark Kuhlberg and Scott Miller recently published "'Protection to the Sulphur-Smoke Tort-feasors': The Tragedy of Pollution in Sudbury, Ontario, the World’s Nickel Capital, 1884–1927" in the Canadian Historical Review. First, the abstract:

While there are many tales of mining companies polluting the Canadian communities in which they have operated, Sudbury’s early history stands out. It is arguably the most extreme example of an industry dictating to government how the latter dealt with the local pollution problem–in this case, sulphur dioxide emissions. The capstone achievement was the creation of an extrajudicial solution to the problem that permanently suspended the legal rights of residents seeking redress for their grievances. Moreover, the Ontario government was duplicitous in this affair–namely, by zealously luring settlers to the region in an effort to develop farming there even though it was acutely aware of the local pollution problem. Finally, this story is truly tragic because the pollution need never have happened to the extent that it did. The provincial politicians knew full well that the means existed–within a short jaunt of Sudbury no less–to mitigate the problem, but the politicians refused to force the mining firms to adopt them. Retelling Sudbury’s story thus highlights how the Ontario government’s decision to grant the mining firms practical impunity to pollute the local environment–both human and non-human–was a matter of political choice.

The article details the many legal tactics taken by the mining companies to avoid an injunction that might shut down their operations, the most extreme of which was the "extrajudicial solution" mentioned above. Said solution was one which has also reared its head in recent times - compulsory arbitration. The article explains the Ontario Act to Provide Compensation for Damage caused by Sulphur Fumes of 1921 (citations omitted):

The source of disenfranchisement for rural Americans

Slate's Issac Chotiner recently interviewed Eliza Griswold on her new book, Amity and Prosperity: One Family and the Fracturing of America (Macmillan, 2018). In the interview (and presumably the book) Griswold displays a strong historical sensibility about the legal-environmental roots of some of America's (and hence the world's) current predicament. An excerpt:

Isaac Chotiner: What is it that is “fracturing” America?

Eliza Griswold: These days we are hearing so much about this rural/urban divide. What does that really mean? What is the source of disenfranchisement for rural Americans? Much of it stems from natural resources. Rural Americans have paid for the energy appetites of urban Americans for more than a century.

I think a lot people in urban America would hear that and say, “Well, the people who are voting for candidates who are less interested in environmental protections are coming from rural America, and the people who are voting the opposite way are coming from urban America.” What do you say to that?

The urban American understanding of how regulation plays out on the ground in rural America is woefully inadequate. First of all, we don’t understand how for more than a century in many places in Appalachia, rural Americans have had their land ruined, as well as their health and their communities, in a search for the natural resources that feed urban Americans.

On top of that, if you talk to farmers, if you talk to Appalachian farmers … First of all, none of them simply farm, they have two jobs. Often that second job has to do with resources. They are either coal miners or former steelworkers. But how regulation plays out in their life on a daily basis has to do with farming, and farm regulation has driven many small farms out of business.

So, there’s this huge double standard where, if you talk to a pork farmer in Amity, he’s going to tell you that he has to pay $100 every time the vet comes out to take his shots. And that he has to fence his stream and the cows can’t go into the water. And he can’t drive his tractor across the stream either. Yet for more than a century, extractive industry has been able to come in and do whatever it wants to do. Until finally, here’s oil and gas, here are frackers who are actually paying money for mineral leases. Who are urban Americans to come in and wag a finger and say, “You don’t have the right to make any money off your land.” They don’t even understand how regulation practically works on the ground.

Bevin Boys - WWII coal conscription

Bevin Boys report for duty in 1943 (Express)

The blog "ART and ARCHITECTURE, mainly" earlier this week had an interesting post on something I knew nothing about, despite my once-future career as a military historian. It seems that Britain conscripted nearly 50,000 men to work in its coal mines, in place of the military service, during the period 1943-48. From the blog:

Coal was essential for military production during WW2; somehow Britain had to match the quotas needed to keep fact­ories churn­ing out the munitions required at the front. And as Britain was unable to import coal in wartime, the production of coal from local mines had to be increased. But how? 36,000 miners were already cons­crip­t­ed for army duty and had left their collieries.

Ernest Bevin, wartime Minister of Labour and National Service and a former Trade Unionist, believed the short­age could be remedied by using conscripted men to fill the vacancies in the mines, keeping production at the rates requir­ed. In Dec 1943 he announced a scheme in Parliament. 

A ballot would take place to put a fixed perc­ent­age of cons­cript­ed men into the underground collieries rather than into the armed services. “We need 720,000 men continuously employed in this industry. This is where you boys come in. Our fighting men will not be able to achieve their purpose unless we get an adequate supply of coal.” Any refusal to comply with the Direction Order would result in a heavy fine and/or imprisonment under the Emergency Powers Act in force back then.

There's lots more on the story at the blog, worth a read.

Economics and property rights in the Gold Rush

I just came across a review that I wrote and submitted a while ago for the Business History Review on Mark Kanazawa's Golden Rules: The Origins of California Water Law in the Gold Rush (U. Chicago Press, 2015). I had thought the editors would inform me when it was published... Anyway, here's what I wrote:

There's still gold in them thar hills. A century and a half after the torrent of gold-seekers to the California Sierras dried up, the flow of historical studies of the development of property rights on the gold frontier continues unabated. This work of detailed scholarship by Mark Kanazawa, an economic historian who has published extensively on water law in the western United States, is the latest entry into the auriferous regions.

Romance and adventure aside, economic and legal historians, along with property theorists, have been drawn to the California gold rush for two main reasons. First, the development of “codes” in the mining camps of the forty-niners provides a colorful case study of the institution of a system of law from scratch. Because government presence and state law were thin on the ground in gold-rush California, the ability of the miners to institute working systems of norms seems to serve as a historical example of successful private ordering. Beyond this, scholars of water law have taken a particular interest in the laws of the diggings, as the system of private rights in water that applies to this day in much of the western United States, known as the appropriation doctrine, is thought to have originated in the gold fields. So miners’ laws have received quite a lot of attention in studies hoping to explain how legal order spontaneously emerged out of chaos and why the miners abrogated the common-law regime of “riparian rights” in water (in which all landholders adjacent to the water source shared it) in favor of appropriation, based on the principle of “first in time, first in right.”

Golden Rules takes an economic approach to understanding the origin and evolution of water law in the California mining region in the decade or so following the discovery of gold at Sutter's Mill. After several substantial introductory chapters laying out the history of California gold mining and the ditch industry that developed to provide the water used in increasingly large and sophisticated mining operations—as well as the economic theories of property and tort he believes explain the historical development of the law—Kanazawa gets down to his analysis in detail. Chapter 5 examines the water rules adopted in the mining camps, arguing that they generally did a good job of promoting mining at an efficient scale. Chapter 6 discusses how economic forces gradually pushed disputes over water from the informal mining camp system to the official courts of the state. Chapter 7 argues that the appropriation doctrine as it developed in the California gold fields was economically efficient. Chapters 8 and 9 turn to legal issues often ignored in both gold rush histories and the legal history of water—the regulation of water quality and damage caused by bursting dams—arguing that with regard to these, too, California law provided efficient solutions.

Merchants of Doubt - the prequel

(courtesy The Age of Change)

Oreskes and Conway's Merchants of Doubt shined a light on how industry employed scientists in recent decades to cast doubt on the reality of environmental and health problems like smoking and climate change. An article by Andrew Perchard & Keith Gildart in last year's Labor History, "'Buying brains and experts': British coal owners, regulatory capture and miners’ health, 1918 – 1946", shows that this problem has been around for a while. The abstract:

This article examines British coal owners’ use of medical and scientific knowledge of occupational lung diseases in the mining industry to resist regulatory changes between 1918 and 1946. It explores the strategies deployed by coal owners in response to scientific and lay debates over the hazard to workers’ health presented by dust, and legislation to compensate miners for pneumoconiosis and silicosis contracted in the nation’s collieries. In particular, it investigates coal owner deployment of the views of notable scientists, especially the eminent physiologist John Scott Haldane (1860–1936), who insisted on the harmlessness of coal dust, in order to avoid costly compensation payments, as well as capital investment in ameliorative measures to reduce miners’ exposure to such hazards. In so doing, the article provides new insights by illustrating how coal owners influenced mining education programmes, deploying the arguments of Haldane and others, with direct implications for health and safety in British mines. This contributed to the mounting public health disaster wrought by coal dust on Britain’s mining communities. This process is viewed as part of the broader political activities of the coal owners – and their industry body, the Mining Association of Great Britain – in its attempts to influence the regulatory process in a period of dramatic change in the political economy of coal.

Preserving Austrian Forests—and More

“Sustainability is the key principle”—that’s how Bernhard Mittermüller describes the great Austrian Forest Act of 1975 in my latest video, “Preservation Waltz.” Mittermüller teaches at the University of Natural Resources and Life Sciences in Vienna, fondly known as BOKU, and he was kind enough to speak with me for this latest addition to my series about Austrian conceptions of law and the Austrian experience of landscape (discussed previously on ELH here and here).

One of the things that intrigued me during my Fulbright stay in Austria was the way that many of its modern, progressive legal concepts grew out its monarchical past, and they bear traces of that royal origin. In Austria, the echo of monarchy is everywhere, including in jurisprudence.

That’s certainly true of the legal concept of environmental sustainability, which now is enshrined in Austrian constitutional law as a national aspiration. Ironically, the regulation of Austrian forests today grew from the efforts of early modern archdukes and prince bishops to protect the woods because of the critical role wood played in the mining industry. This form of environmental protection involved a forceful assertion of power over the local population.

Even more deeply, the regulation of forests in Austria is inextricable from the development of the modern state as a whole. Whereas in England, the first use of the term “common law” was as a contrast to the law of the forest, in Austria the growth of the national approach to law and governance was based in a meaningful degree on the regulation of  the woods, as the spirited legal historian Martin Schennach of the University of Innsbruck explains.

And so the beauty of the well-tended Austrian landscape, which today forms the life-blood of the tourist economy on which the nation depends; the restriction of private autonomy in relation not only to environmental resources but as a general matter of Austrian social life; the progressive vindication of an ideal of the public good; and the social hierarchy of the Mandarin administrative apparatus which took the place of royal authority—all were of a piece in the formation of Austrian identity. And these links can be perceived, and caught on film, shimmering and hovering about everyday Austrian life.

The video isn’t only about the protection of the forests. It’s called “Preservation Waltz,” and it also meditates on the principles of sustainability, community, and order in two other fields involving law and wood. The first area is Austrian domestic architecture, discussed by Karim Giese of the University of Salzburg, which prizes harmony and uniformity as a form of cultural sustainability. Construction law in Austria is guided by the same resistance to market liberalization present in Austrian forest law.

The second area is the preservation of books (made from paper, derived from wood). The video indeed is structured around a conversation with Renate Schönmayr, director of the University of Salzburg’s law library, which I hope playfully links its look at forest and construction law with larger cultural themes about what it means to conserve, safeguard, and study the past.

Want to learn more about Austrian forests and forest law? Here a link to an English-language section of the Austrian forest ministry. Here is the English translation of the Austrian forest report of 2015. And here is the contemporary, amended forest legislation in German. And here is the video:

Resource extraction and property rights in Guyana

Joshua Bryant, Rainbow over a Plantation (Demerara, early 19th century)

Environment and History recently published Janette Bulkan's "'Original Lords of the Soil'? The Erosion of Amerindian Territorial Rights in Guyana". The abstract:

The consequences of State claims to, and controls over, the territories of Guyana's Indigenous Peoples (Amerindians) are traced through successive Dutch and British colonial to post-Independence governments. From the mid-eighteenth century, a numerically small sugar plantocracy wielded influence within local government and ensured that colonial policy served its interests located on the coastland. Hinterland policies extended the capitalist approach to natural resources extraction and favoured the dominance of the small stratum of monied interests over the majority of Crown licences for forestry, mining and ranching, which were superimposed on claimed Indigenous lands. The colonial governments' approach to Amerindians was protectionist, but the Amerindian land rights were not codified in law. Authoritarian post-Independence governments have used the discretionary power in the legislative framework inherited from the colonial times to expand the numbers of, and areas covered by, logging and mining licences. The State is aided by the lack of a participatory reservation process for forests and/or a formal settlement process to determine and codify pre-existing customary rights of Indigenous Peoples, twin processes that were instituted in the majority of British colonies. Indigenous rights and privileges on their customary lands have been steadily eroded in law, policy and practice. Amerindians receive few economic benefits from natural resources operations on either their legally titled communal lands or customary lands.

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.

Natural resource law in Salzburg

Mark Weiner's recently posted his video, "Anna in the Mine", which, among other things, has some interesting talk about historical legal rights to natural resources in the Salzburg region. Archaeologist Anna Holzner explains that the Austrian administrative court has ruled that workers on the Dürrnberg still retain their medieval right to mine (salt) on the mountain.

William Colby, first environmental law prof?

Ansel Adams, William E. Colby (from Carl P. Russell, One Hundred Years in Yosemite (1947))

In a new twist on the search for the first environmental law course, Dan Farber at Legal Planet says he has identified the first environmentalist law teacher:

I’m pretty sure that William E. Colby (1870-1964) qualifies as the nation’s first environmentalist law teacher, if only because environmentalism was very young at the time..  Colby was a lecturer on mining law and water law at Berkeley for twenty-one years, retiring in 1936.  (That doesn’t make him the first natural resources teacher;  Judge Lindley had taught mining and water law before him.) Colby was a close friend of John Muir. He joined the Sierra Club in 1898 and, except for two years, was the Secretary of the Sierra Club from 1900 to 1946.  The Sierra Club credits him with contributing substantially to saving redwoods, enlarging Sequoia National Park, and establishing Kings Canyon and Olympic national parks.  He was also the first Chair of the California State Parks Commission.

I was originally going to call Colby the first “environmental law” professor, but it’s not clear how much his environmental concerns entered into his teaching or scholarship about environmental law.  Even then, the environmental impacts of mining were not unknown or without a legal dimension: a federal judge in the Nineteenth Century had halted hydraulic mining in California because of its devastating impacts on the state’s rivers.  His Sierra Club bio does link his legal and environmental work, saying that his”notable eminence as an attorney who specialized in mining and water law . . . . served him well in his conservation work.”  He did represent environmental interests in a couple of cases.

At the outset, I called Colby the nation’s first environmentalist law professor.  Obviously, I’d be very interested to learn if there were others from the era, but I’m guessing the title will stand.  (I’d also love to hear from anyone who knows more about Colby). Either way, it’s nice to know that law teachers became involved in environmental issues at such an early stage.

Antimonopoly in Public Land Law

Michael Blumm and Kara Tebeau recently posted "Antimonopoly in Public Land Law". The abstract:

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. 

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.

Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.

More on antimonopoly in American natural resource law here.

Arnold Reitze and environmental law in the sixties

Continuing the thread on early environmental law courses, Prof. Arnold Reitze has kindly allowed me to post his recollections of his work at Western Reserve in the 1960s, a demonstration of the interesting work that was being done in environmental law in this period in the academy and at a variety of governmental levels, as well as of the cross-fertilization of teaching, scholarship, and activism. Prof. Reitze writes:

I moved to Western Reserve in 1965 to be the school’s tax teacher. I earned my living teaching tax, but spent much of my time as an environmental activist. I was the counsel for Citizens for Clean Air and Water and for the TB Association’s Air Quality Committee. I also represented the Izaak Walton League. I was very involved in the first attempt to use a voter petition to force the legislature to enact environmental laws. The CAA of 1963 created a conference program for air quality improvement, and Cleveland was one of the areas subject to that laws program. I spent a lot of time on that effort. The 1965 Federal Water Pollution Control Act created a zoning program for improving water quality, and I was active in working to set stringent standards for northern Ohio’s rivers. 

When Louis Toepher became Dean he wanted to hire an experienced tax teacher, and he asked me what I wanted to do. I said I wanted to start an environmental program focusing on eastern pollution issues. I then became the nation’s first full-time environmental law teacher. (Joe Sax also was doing some environmental law work, but he spent his career in water and natural resources and never got seriously involved with the pollution control programs that were transferred to the EPA in 1970.) I taught natural resources law, which eventually was named environmental law, but I believe I continued to teach the more traditional natural resources law with a focus on Ohio issues. I also taught water law and administrative law (which was primarily nuclear energy). [I was active in the fight to stop Davis-Bessee plant.] My work on water pollution led to the “Wastes, Water and Wishful Thinking: The Battle of Lake Erie,” 20 Case W. Res. L. Rev. 5 (1968). My air work led to “The Role of the “Region” in Air Pollution Control,” 20 Case W. Res. L. Rev. 809 (1969). This was based on the work to implement the CAA Amendments of 1967. My work on Ohio’s surface mining led to “Old King Coal and the Merry Rapists of Appalachia”, 22 Case W. Res. L. Rev. 650 (1971). In 1968 I started working to produce the Cleveland Air Pollution Code, which I coauthored with Jim Wilburn; it passed in 1969. My research assistant Jim Walpole became the first lawyer for the Cleveland air pollution program. I was also an advisor to Mayor Carl Stokes, Governor Gilligan and was state campaign chairman for Ray Marvin’s run for attorney general. He lost, but was made the deputy AG for administrative issues, and I continued as an advisor to the AG’s office. 

In 1970 the Ford Foundation fully funded an environmental law program at the George Washington University and I was hired to be the director.

For more on early environmental law teaching, see here and here.

Roscoe Pound, environmental law professor

In an interesting twist in the discussion on the first environmental law course in the US, Richard Lazarus writes:

When I decided to research the history of environmental law teaching here at Harvard a few years ago, which took me back to David Cavers and into the 1950s, I also decided to follow the “natural resources” thread as well. What I discovered was that Harvard Law School’s first “environmental law professor” based on that broader view was Professor Roscoe Pound (later Dean Pound). Pound arrived at Harvard around 1910 from the University of Nebraska. Pound had a BA/Masters/PhD in Botany. I think he was the first PhD in Botany from the University of Nebraska. He was not a lawyer though he went to law school. His primary interests were mining law and water law. 

Roscoe Pound

Upon arriving at Harvard, Pound taught a course in the fall of 1911 in the “Law of Mining and Irrigation.”  When he became Dean a few years later, he turned both subjects over to lecturers, one taught the mining law class and the other water law. Lucas Bannister, who taught the water law class, was a highly regarded expert in water law from Denver, Colorado. Bancroft Gherardi Davis was the lecturer on mining law.   Each taught the class for a few decades and were highly acclaimed lawyers of their day.

Pound also wrote about water law. One of his most famous law review articles, Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. (1914) concerns legal evolution and what Pound called “The Socialization of Law.” Pound used water law in his article as a primary example of law’s socialization, describing how the need to “protect the general social interest” in water’s reasonable use “is changing the whole water law of the western states.”  He concluded, presciently, “It means that in a crowded world the social interest in the use and conservation of natural media has become more important than individual interests of substance.”

Pound was a complicated guy and some of his later thinking was far less glorious, and worse than that.  But I came across the 1914 article when I first began law teaching (now a few years ago), and have always thought it worth passing on to my students. In some ways, it is reassuring. In other ways, very much not so, because it underscores how long the problems have been known and how hard it has proven to achieve the law reform necessary to address them. Climate change is the latest, of course.

For more on the first course, see here.

Imperial free trade and the environment on flim

The relationship between trade and the environment is a fraught one; most recently it has been prominent in debates over the proposed Trans-Pacific Partnership.

"Empire Trade", a 1934 British propaganda film, provides some historical context (you can view it at the excellent Colonial Film website; I got to it through a University of Exeter online course on the British Empire). Here low tariffs within the British Empire are touted in terms of the jobs brought to the home country by exports to the colonies and dominions, and the the raw materials from around the empire that feed British industry.

Visually, prosperity at home is represented by belching smokestacks, white-hot furnaces, and smoking locomotives.

"The size, rather than the position of England, governs our greatest national problem today.
We are not a self-supporting country. We depend for our existence on the exchange of our
manufactured commodities for the food and raw materials that we cannot produce ourselves,
and for these we must rely largely upon our Empire and our merchant navy."

And the video tour around the empire is a celebration of exploitation of nature and colonial labor. (Please read the captions, but trigger warning: some of the text is distasteful.)

Rubber plantation in Malaya. "The amount of rubber produced here alone
is nearly twice as much as the rest of the world's output, and so
forms a tremendously important addition to our Empire resources."

Coconut plantation in Malaya. "This chap doesn't have to wait for the fair
and the coconut shies to come to town; he can have 'em for breakfast every morning."

Floating logs in Canada. "The watermen, who see to it that these logs float downstream without
jamming, have an exciting time." A few frames later, some of them fall in the water.

South Africa. "Her most important industries are diamond and gold mining,
both developed by British engineers, equipped with British machinery."

It seems that circa 1934 environmental degradation and exploitation of less developed countries were clearly seen to result from free trade. One might be charitable and say that they were seen as the price that needed to be paid for economic prosperity, but watching this film, one gets the sense that its makers weren't troubled at all by these costs.

The Kawbawgam Cases

Last year's Michigan Historical Review published Rebecca Mead's "The Kawbawgam Cases: Native Claims and the Discovery of Iron in the Upper Peninsula of Michigan" (also here). The article begins:

Charlotte Kawbawgam (Superior View)

The southern shore of Lake Superior is a beautiful but rugged and isolated region that inhibited early Anglo-American settlement and still poses significant challenges for its inhabitants. In 1840, seasonally nomadic groups of Algonkian-speaking Natives and the mixed-race peoples of the fur trade occupied the area, but after the discovery of valuable mineral resources the situation changed rapidly.... When the first Anglo-American surveying and prospecting parties came to the area, local Natives guided them to the fabulously rich deposits of the Marquette Iron Range but the prospectors shared little of the subsequent wealth. Charlotte Kawbawgam's story reveals, however, that Anglo-Americans did not always appropriate Native resources without gratitude or payment. Kawbawgam's efforts to obtain compensation from Jackson Iron Company for services rendered by her father Matji-gijig ("Bad Day") in locating the Marquette Iron Range culminated in three Michigan Supreme Court cases in the 1880s and a landmark decision.

Call for Papers: Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries

The call for papers for an international symposium on "Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries, 18th-20th centuries", to be held 21-22 May 2015 in Évora, Portugal, has been extended to May 3. From the call:

At the end of the 19th c, within the context of capitalist firm competition and the dynamics generated by technological advance, the creation of global markets for minerals and metals promoted intensive extractive and industrial large scale operations which had a major impact not only on the quality of the water from springs, rivers and seas, but also on air and soils. New industrial landscapes were created in the process under the enthusiasm fostered by the ideologies of progress, nationalism and militarism. While environmental conflicts are today one of the dominant forms of social contention, they remained almost silenced in the past. This scientific meeting addresses the role of those conflicts in the shaping of strategies in Mining and Metallurgical Industries (MMI) and in the emergent knowledge of environmental management and governance that has become embedded in the European legal and institutional framework. From this standpoint, other issues should be also addressed, such as:

• How MMI responded to emergent environmental issues raised by institutions and the civil society?

• How risk and other environmental related concepts became under consideration in business strategies and, especially, what were the scientific and technological initiatives adopted?

• How environmental conflicts varied across time and cultures (organization, components, social influence, etc)?

The full call and more details are here.

In Memoriam: Gordon Bakken

We note the recent passing of historian Gordon Bakken (1943-2014). A leader in the fields of western American history and women's history, Bakken was also active at the intersection of legal and environmental history. Some publications:

• "American Mining Law and the Environment:  The Western Experience," 1 Western Legal History 211-36 (Summer/Fall, 1988)
• "A Law for Water in the West: Irwin v. Phillips (1855)," pp. 314-15;  "The Hydraulic Society of the Colorado River: Arizona v. California (1963)," pp. 320-21 in John W. Johnson, ed. Historic U.S. Court Cases, 1690-1990 (Garland Publishing, 1992)
• “An Inversion Layer in Western Legal History: Air Pollution in Butte, Montana," in Hendirk Hartog and William E. Nelson, eds., Law as Culture and Culture as Law (Madison House Publishers, 2000), pp. 264-91
• "Water Pollution, Law, and the Collapse of Societies,” 17 Western Legal History (Summer/Fall 2004): 211-234
• “Montana, Anaconda, and the Price of Pollution,” 69 The Historian (Spring 2007), 36-48
• The Mining Law of 1872: Past, Politics, and Prospects (University of New Mexico Press, 2008)
• “Mining and Pollution in the West: The Limits of Law Protecting the Environment". 21 Western Legal History (Summer/Fall 2008), pp. 209- 236
•  “Colorado’s Impact on American Mining Law,” 49 Journal of the West (Spring 2010): 61-67