Peter Sand on Karl Neumeyer as precursor of transnational environmental law

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

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

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

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

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

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.

Rechtstaat and Recht in the German nuclear power debate

The latest Law and History Review has an article by Michael Hughes, "Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983".  The article begins:

Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

Hans Weingartz,
Anti-AKW-Demonstration auf dem Bonner Hofgarten am 14. Oktober 1979

Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the 1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.

Nuclear plant siting

Eric Berndt and Daniel Aldrich have posted "Power to the People or Regulatory Ratcheting? Explaining the Success (or Failure) of Attempts to Site Commercial U.S. Nuclear Power Plants: 1954-1996". The abstract:

Between 1954 and 1996, more than 200 nuclear power projects were publically announced in the United States. Barely half of these projects, however, were ever completed and generated power commercially. Past research has raised a number of potential explanations for the varying siting outcomes of these projects, including contentious political protest, socioeconomic and political conditions within potential host communities, regulatory changes (“ratcheting”) and the cost overruns associated with reactors. This article uses a new, sui generis data set of more than 210 cases of actual and potential host communities over time to illuminate the regional and national variables which led to successful siting (or failure). Controlling for factors highlighted by past studies, we find that regulatory, collective action, and reactor-specific factors best predict the outcomes of attempts to site nuclear reactors over this time period. These findings have important implications in the post-Fukushima “nuclear renaissance” era when many still hope to revitalize the nuclear industry in the US and abroad.