The evolution of US NOx standards for cars

Dan Farber at Legal Planet recently posted on "Cars, Smog, and EPA". An excerpt:

For the first 20 years of federal regulation, Congress set the NOx [nitrogen oxides] standards for new cars itself. That’s quite different from the standards for industrial pollution sources, which Congress has always delegated to EPA. The reason may have been the high political stakes in the car industry or the relatively easier task of setting standards for new products in a single industry using a single energy process.

East River and Manhattan Skyline in Heavy Smog (Chester Higgins, Jr., EPA, 1973)

... The initial standard, set in the 1970 Clean Air Act, was 3.1 grams per mile (gpm) for NOx. Achieving that standard was thought to be nearly impossible when Congress created this mandate, but the mandate forced the car companies to make technological breakthroughs with catalytic converters.

Note that the standard is set in terms of pollution per mile rather than pollution per gallon. That means that any increase in fuel efficiency automatically helps a company meet the pollution standards as well. Theoretically, a car could have no pollution control at all but get such phenomenal mileage that it met the pollution standard. Actual mileage has improved but not enough to obviate the need for pollution controls.

Congress adjusted the standards twice. A 1977 amendment reset the limit to 1 gpm in 1981. The 1990 amendments changed the standard to 0.6 gpm, effective in 1994. These are called Tier 1 standards. Apparently Congress did not relish the task of periodically resetting the standards itself  The 1990 Amendments authorized EPA to set standards for 2004 and beyond.

*****

This has to be considered a successful regulatory program. The Biden proposed standard  [of 2023] allow less than 1% of the pollution levels that Congress mandated in 1970.

Sic utere versus salus populi

In a series of publications, most importantly her 2009 book, Chasing the Wind, Noga Morag-Levine has argued forcefully for distinguishing between continental European-style "police" regulation and common-law-style environmental regulation based on a nuisance conception. The recent issue of Law and History Review has an interesting article by Morag-Levine, "The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis", in which she finds the roots of this distinction in English law much earlier than she has previously argued. The abstract:

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

from John Speed's 'The Theatre of the Empire of Great Britaine' (1611-1612) (British Museum)

Efficiency and equality in US environmental regulation

Kunal Parker recently reviewed Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton UP, 2022). There's a lot here that's relevant to the history of environmental regulation. First, Parker's summary of Popp Berman's argument, with obvious implications for understanding historically some mainstays of environmental policy, such as cost-benefit-analysis and market tools for regulation:

The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.

The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right.

By the time Ronald Reagan was elected president, the economic style introduced during the Kennedy and Johnson years had become thoroughly entrenched. Indeed, it had become the hegemonic approach to solving all manner of public problems, its ubiquity and self-evidence continually reinforcing each other. Reagan Republicans would employ the economic style, but the ground had been laid for them decades earlier by Democrats. Indeed, Popp Berman argues, Democrats proved far less strategic in using the economic style than Reaganites. Democrats privileged it as a method in context after context and allowed it to subsume their substantive ends. By contrast, Reaganites were more selective and often successfully subordinated it to their substantive ends.

Parker, though, queries whether equality was actually the guiding principle in the pre-efficiency era:

Negotiating regulatory science

More on the law-science nexus: The latest issue of Comtemporanea has an article by David Stradling, "Negotiating Regulatory Science. Dredging the Great Lakes in the Age of Ecology". The abstract:

In the mid-1960s residents around North America’s lower Great Lakes expressed growing concern about the dumping of dredge spoils in open waters, which they suspected of harming water quality. The act of dumping spoils, particularly from industrial harbors, became a target for government regulators eager to show progress in solving the environmental crisis. Scientific studies of dredging’s ecological impact and the regulation of dredging increased in Canada and the United States. The multiplicity of bureaucracies involved ensured that the International Joint Commission (IJC), established to resolve policy conflicts along the international border, would address the issue of dredging. The IJC response to the dredging conundrum provides a case study of how bureaucracies negotiated scientific knowledge in the age of ecology. Scientists turned data into knowledge and knowledge into policy guidance inside bureaucracies with conflicting missions that reflected divisions in the broader public. The public’s vague but powerful fear about sediment tainted by the industrial cities in which it accumulated forced the creation of a remarkable body of scientific knowledge related to how pollutants move through and accumulate in lake ecosystems. Activists forced governments to define pollution, to determine which of the many effluents of industrial cities affected human and ecological health, and at what concentrations they became a threat. In the age of ecology, regulation often outpaced science, and scientific research raced to meet public demands.

The elimination of leaded gasoline in Japan

In Custodia Legis recently carried an interesting post by Sayuri Umeda on the history of the elimination of leaded gas in Japan. Among other things, it demonstrates that environmental regulation is often driven politically by pressure from businesses that stand to profit from the regulation, a phenomenon we have also seen, for instance, in the history of the Montreal Protocol on ozone-depleting substances. This is an important lesson for those trying to drum up political support for regulation. (It is also a shocking story of greed and regulatory failure in the US and elsewhere.)

Umeda writes (some links removed):

When I saw news headlines online on March 7, 2022, saying that a study found Americans born before 1996 might have a lower IQ from exposure to leaded gasoline, I seriously thought that my own IQ could be lower for the same reason, having grown up in Japan.

I checked when Japan banned leaded gasoline and found that actually, I was safer in Japan. Japan was the first country to ban leaded gasoline.

Epidemics in late medieval law

The Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

*****

The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Dan Ernst's exam on public health law

Dan Ernst strikes again with an amazing exam question for his legal history course, this time on public health law in the US (see here for an earlier one on grazing). Some excerpts from the essay:

The Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.”  Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.”  But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court.  Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.” 

*****

In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them.  When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances.  The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact.  The board of health “could obtain its information from any source and in any way,” the court noted.  If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.”  The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’” 

US Public Health Service officers, c. 1912

The Santa Barbara Oil Spill

H-Environment recently published a review by Samm Newton of Teresa Sabol Spezio's Slick Policy: Environmental and Science Policy in the Aftermath of the Santa Barbara Oil Spill (U. Pittsburgh Press, 2018). The Santa Barbara spill is often pointed to as one of the foundational moments of modern American environmentalism and environmental regulation, but Spezio seems to flesh out the picture.

Newton writes that Spezio

explores the relationships between oil pollution and political changes in the 1970s and asks how the Santa Barbara oil spill became a watershed moment in the history of environmental and science policy in the US, especially in regard to the Clean Water Act of 1972 (CWA). To answer this question, Sabol Spezio analyzes how the oil spill influenced the CWA and the National Environmental Policy Act (NEPA), as well as the formation of the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA). She then turns to the changing science and technology that became essential to understanding marine oil pollution and how that contributed to detecting water pollution in fresh water systems. She argues that the US government’s reactions to the Santa Barbara oil spill improved their ability to address controlling, measuring, and regulating water contamination on a federal level. 

Her argument is broken into three sections. Part 1 describes environmental science and policy before 1969. Before the oil spill, no entity was officially in charge of managing the oceans. Federal waters were regulated by the Bureau of Land Management (BLM) and the United States Geological Service (USGS) under the guidance of the very oil companies exploiting the resources located in those waters. Additionally, scientists used different protocols and technologies to measure oil pollution. Before 1969, water quality was measured by smell, taste, sight, and/or the presence of disease. The oil spill in California challenged that precedent, contending that measurement by the senses was inefficient. A flurry of new research methods and technologies, specifically gas chromatography, followed in an effort to estimate both oil in water and the dispersants used to combat oil pollution.

*****

As Sabol Spezio argues, it took a salient crisis, like the debacle that was the oil spill, to make regulatory change possible. Several events in the 1960s and ’70s, such as the publication of Rachel Carson’s Silent Spring (1962) and the Cuyahoga River fire, contributed to the salience of environmental degradation in the American attention cycle. Sabol Spezio adds to the literature by claiming that the Santa Barbara oil spill was not just one of many environmental crises but was the tipping point event that made the reform of US environmental regulation possible. 

Water pollution regulation: an economic analysis

Last year the Journal of Economic Perspectives published "US Water Pollution Regulation over the Past Half Century: Burning Waters to Crystal Springs?" by David A. Keiser and Joseph S. Shapiro. The abstract:

In the half century since the founding of the US Environmental Protection Agency, public and private US sources have spent nearly $5 trillion ($2017) to provide clean rivers, lakes, and drinking water (annual spending of 0.8 percent of US GDP in most years). Yet over half of rivers and substantial shares of drinking water systems violate standards, and polls for decades have listed water pollution as Americans' number one environmental concern. We assess the history, effectiveness, and efficiency of the Clean Water Act and Safe Drinking Water Act and obtain four main conclusions. First, water pollution has fallen since these laws were passed, in part due to their interventions. Second, investments made under these laws could be more cost effective. Third, most recent studies estimate benefits of cleaning up pollution in rivers and lakes that are less than the costs, though these studies may undercount several potentially important types of benefits. Analysis finds more positive net benefits of drinking water quality investments. Fourth, economic research and teaching on water pollution are relatively uncommon, as measured by samples of publications, conference presentations, and textbooks.

The Cigarette: A Political History

The Cigarette: A Political History (Harvard UP, 2019) by Sarah Milov, co-founder of this blog, was recently reviewed by Reuel Schiller for Jotwell. Schiller writes that Milov's "narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state." Further excerpts:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.

First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.

The environment in Dan Ernst's legal history exam

Dan Ernst (Georgetown Law) regularly posts a long exam question from his legal history course at Legal History Blog. This year's question was on federal grazing policy in the US. Some excerpts:

One of the Forest Service’s first projects was to subject stockmen used to roaming the mountains at will to the principles of forestry.  To develop and defend the new regulations, Pinchot hired, as chief legal officer of the Forest Service, an able and imaginative lawyer, who was personally indebted to him for, among other things, lending him money in the past.  The chief legal officer, who reported directly to Pinchot rather that the more politically connected Solicitor of USDA, soon worked out an ingenious constitutional justification for criminal enforcement of the grazing regulation, turning in part on the claim that the use of the public domain was not a private right but merely a privilege.  In 1908, Pinchot’s lawyer convinced the Department of Justice to bring a test case against a sheepherder named Pierre Grimaud.  A federal district judge ruled that the prosecution violated the nondelegation doctrine.  On direct appeal to the U.S. Supreme Court, the justices at first deadlocked, 4-4.  Pinchot was unfazed.  “I hold it to be the first duty of the public officer to obey the law,” he explained, “but I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good.”  After Charles Evans Hughes and another justice joined the Court, Grimaud was reargued, and, in 1911, the Court upheld the prosecution.  The Forestry Service immediately brought scores of criminal prosecutions, and, by 1912, USDA could report that overgrazing in the forest reserves had ended.

*****

In 1934, the Colorado Cattleman’s Association sent [Farrington] Carpenter to Washington, DC, to lobby Congress to add beef cattle to the Agricultural Adjustment Act’s list of “basic agricultural commodities” and permit them to enter into marketing agreements controlling cattle prices.  Having succeeded, Carpenter stopped by his Congressman Taylor’s office to say his goodbyes, just as the grazing act was having a hearing.  Realizing that Carpenter would be an effective witness and learning that he did not think the public domain should be turned over to the states, Taylor asked him to testify.  (Carpenter was no fan of national power, but he believed that once the land was devolved to the states, different grazing interests would capture different state legislatures and produce an unworkable patchwork of regulation.)  Before the House committee, Carpenter spoke for small-scale cattle stockmen such as himself, plagued by nomadic sheep herds and pushed off public domain by larger cattle outfits.  Federal control was the small stockman’s only chance to avoid being “completely wiped out of existence,” he testified.

When, a few months later, [Secretary of the Interior] Ickes’s undersecretary offered Carpenter the directorship of the new Grazing Division created within the department to enforce the Taylor Grazing Act, Carpenter warned that sheep herders would object to his appointment because he was known as a champion of cattlemen in his corner of Colorado.  He claimed also to have said that he did not intend to create “a great centralized bureau” like the Forest Service, “run by Eastern people who know little about the public domain.”  After consulting a government official who once represented sheep herders, Ickes decided Carpenter would treat them fairly.  Whether Carpenter’s other warning registered with the Interior Secretary Ickes is not known. 

Molecular bureaucracy

The latest issue of Environmental History has an article by Evan Hepler-Smith, "Molecular Bureaucracy: Toxicological Information and Environmental Protection". The abstract:

Legal and political claims about environmental chemicals typically address such substances on a molecule-by-molecule basis. This article argues that this approach is not determined solely by the nature of chemicals. Rather, it is the product of legal structures, administrative procedures, regulatory lists, information systems, and nomenclature conventions, which I collectively term “molecular bureaucracy.” This article traces the development of molecular bureaucracy, a global framework of environmental governance grounded in American regulatory infrastructure, and its political and environmental consequences. It does so by following the history of per- and polyfluoroalkyl substances, synthetic chemicals in widespread use since the 1950s whose toxicity has become a prominent subject of research and public concern since the late 1990s. Molecular bureaucracy originated in a classification system based on molecular identity developed to make chemical information accessible to the late nineteenth-century synthetic chemicals industry. It came to structure environmental law and politics through, first, the efforts of 1960s US policy-makers to render toxic hazards subject to government control through computer-based information coordination and, second, a vision of chemical holism within the nascent US Environmental Protection Agency and the Toxic Substances Control Act, which sought to accommodate the global environment to rational administration by aggregating diverse toxic hazards and reframing them as abstract chemical substances. The history of molecular bureaucracy offers valuable insights for present-day efforts to ground toxic substances scholarship and politics in alternative conceptions of environmental chemicals.

(Chemická informatika)

The Adirondacks in the seventies

Just out in the Journal of Policy History: Peter Siskind's "'Enlightened System' or 'Regulatory Nightmare'?: New York's Adirondack Mountains and the Conflicted Politics of Environmental Land-Use Reform During the 1970s". The abstract:

This exploration of the politics of land-use reform in New York's vast Adirondack Mountains provides a revealing window onto the ambiguities, evolution, and importance of environmental liberalism during the 1970s. A distinctive set of circumstances, featuring forceful advocacy by Governor Nelson Rockefeller and propitious political timing, led to the creation in the early 1970s of one of the most ambitious state-level environmental reforms in modern American history. But implementation during the mid- and late 1970s proved challenging. Environmental management by a new regional agency that possessed powerful regulatory authority over all public and private lands in the region produced discontents, distrust, and organized opposition among both developers and property-rights advocates on the right and environmental advocates on the left. The result was an uneasy, enduring legacy: the new regulatory institution and key environmental planning ideas of the early 1970s and the later, wide-ranging discontents would coexist in similar forms for decades to come.

Administrative procedure and environmental regulation

Legal History Blog recently published brief pieces by scholars visiting at Princeton's Davis Center this year, in which they wrote about their research. Some excerpts from Angela Creager's:

Why has environmental law, an area of widespread popular engagement and legal activity, met with such limited success in the last half century? Corporate money? Special interests? Neoliberalism? These usual villains are not innocent, but I am interested here in how companies and their lobbyists used provisions of law, namely the 1948 Administrative Procedures Act (APA), to thwart stronger regulation....

My focus has been the Toxic Substances Control Act (TSCA) of 1976. This was the first US law aimed at providing environmental and health oversight of all commercial chemicals. The act was introduced in 1971 as part of the Nixon administration’s environmental initiatives, and different versions of the bill passed both houses by the fall of 1972, only to die in Senate-House Conference Committee during the 92nd session of Congress. In 1974, amidst the Watergate scandal and Nixon’s resignation, the Senate and House of Representatives again passed different versions of TSCA. Once again, the legislation died in committee. Early on, it appeared that none of the bills would not become law, a simple solution for its opponents.

In July 1975, a scandal reignited political pressure for chemicals regulation. Dozens of workers at chemical factory in Virginia were poisoned through their exposure to Kepone, a neurotoxic pesticide manufactured in the plant. The Ford administration made it clear that some version of TSCA needed to be signed into law to appease political pressure. Representatives for the Manufacturing Chemists Association (MCA), a trade group representing the chemical industry, began hammering out the details of a bill with Congressional staffers. The final statute specified numerous procedural hurdles for EPA in fulfilling its mandate to regulate chemicals. These hurdles were not conceptual slipups, but compromises made to produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer who actually helped write the provisions, has said: “The 1976 Toxic Substances Control Act (TSCA) contains such obscure and inconsistent phrases that its supporters were doomed to frustration.” The legal scholar Kevin Gaynor, who analyzed the law shortly after it was enacted, called it “a regulatory morass.” Even its provisions “ensuring transparency of safety data” became “rigid procedural handcuffs.” This was a statute designed to make industry oversight difficult.

Many of these complexities had to do with how TSCA addressed requirements of the APA. For example, rather than make toxicity testing of commercial chemicals required for either old or new chemicals, the bill stipulated that EPA would have to issue a rule to require testing of any individual substance. Requiring rule-making on a chemical-by-chemical basis meant that the agency could only request testing data on a limited number of commercial chemicals, of the 60,000 on the market and thousands added each year. 

(from Environmental Working Group)

The "government take" and environmental protection

Suncor oilsands mine near Fort McMurray (Todd Korol, Toronto Star)

Though Israel's coming elections revolve around other issues (and non-issues), a major political issue in Israel over the last decade has been how to divide the profits of the country's natural gas finds between the developers and the public (the legal owners of the resource). While environmental groups have argued - and this has also been my natural inclination - that the public's ownership should be expressed with a relatively large "government take" (the percentage of revenue paid over to the state in the form of royalties and taxes), I have also noted that increasing the government's financial interest in the gas decreases its motivation to effectively regulate the environmental aspects of its development.

Hereward Longley's recent article in Environment and History, "Conflicting Interests: Development Politics and the Environmental Regulation of the Alberta Oil Sands Industry, 1970–1980", provides historical support for this argument. The abstract:

This article examines the relationship between development politics and environmental regulation and research during the first commercial development phase of the oil sands industry. As demand for oil grew after the Second World War, and oil supplies from the Middle East became less stable, oil companies began building facilities to produce synthetic oil from the bitumen deposits in north-eastern Alberta. The commercialisation of the oil sands industry coincided with the formalisation of environmental policy at both the provincial and federal levels. When the Progressive Conservative Party, led by Premier Peter Lougheed, formed a government after winning the 1971 election, it strengthened and expanded the scope of environmental regulation into the mid-1970s. The 1973 oil crisis changed the economic viability and importance of the oil sands industry. For Lougheed, the oil sands industry became a cornerstone of the PC government’s goals to diversify the Alberta economy. To save the Syncrude project after Atlantic Richfield withdrew its thirty per cent stake in the consortium in December 1974, the Alberta government bought a ten per cent position along with the federal government and Ontario. This article argues that investing in the oil sands industry created a conflict of interest for the Alberta government, as it became both the regulator and the developer of the resource. Using a range of archival sources and oral history, it shows how Alberta’s environmental policies and research programmes were sidelined by the Lougheed government in the latter half of the 1970s, culminating in the cancellation of the Alberta Oil Sands Environmental Research Program in 1980. The marginalisation of environmental regulation and research has contributed to the environmental impacts of the oil sands industry on ecosystems and Indigenous communities, and limited public awareness of environmental change.

Tyne After Tyne

H-Water recently posted a review by Leslie Tomory of Leona Skelton's Tyne after Tyne: An Environmental History of a River's Battle for Protection, 1529-2015 (White Horse Press, 2017). An excerpt from the review:

The first two chapters deal with the earlier period from 1529 to the mid-nineteenth century. The history begins when the Crown named the mayor and aldermen of the Newcastle Corporation the conservators of the Tyne and its tributaries via a parliamentary act. The purpose was to preserve the freedom of navigation from encroachment and to prevent silt from blocking the channel. From that time, the river’s conservators considered applications from riparian landowners to do works that could alter the river’s flow, such as the construction of docks. The corporation’s activity in this role was only sporadic to 1613, when new bylaws were passed regulating various activities along the Tyne, such as waste disposal and the construction of wharves. From this point onward, the corporation every year appointed water bailiffs and river jurors to monitor and hear cases of contraventions. These institutions continued to exist until 1835 when municipal reform laws replaced them with a River Committee. Skelton argues that the activity of the Tyne river court can be seen as a form of environmental regulation that prevented the overdevelopment of the river. In doing so, she tries to seek similarities with the environmental regulations that would emerge in the twentieth century, while recognizing that the motivations were to preserve the river for economical motives. While she is correct to point out that modes of environmental preservation existed long before the late nineteenth century, the commonalities with twentieth-century movements, which she mentions in a number of places, seem overdrawn.

The next chapters describe the Tyne Improvement Commission (TIC) activities from 1850 to 1968. The commission was created by Parliament with a mandate to foster the river’s economic utility. This commission’s principal interest was above all on the trade that flowed down the river. As in the earlier period, this included keeping its central channel deep and free-flowing for ship traffic. It developed a degree of expertise by employing a well-paid engineer to report on proposed works along the river, as well as waste disposed into it. The TIC was concerned with waste discharged into the river but only because it could be a barrier to navigation. This narrow interest meant that almost all applications for docks, sewers, and other structures along the river were approved. Whatever interest there was in preserving nature, on an institutional basis at least, was found in the Tyne Salmon Conservancy (TSC). It was founded in 1866 in the wake of Royal Commissions on salmon conservancy and was given the mandate to protect the fish in the river. Skelton argues that the TSC and its successors built up knowledge of the state of the fish in the Tyne (and other rivers in the area) that, while not producing immediate results, nevertheless proved valuable for environmental protection in the long term, especially after the 1950s. For example, scientific studies from the 1920s and 1930s explored water quality and fish species. The TSC made a concerted effort in these years to motivate a cleanup of the river as it became ever more polluted with effluent. Efforts to get the funding necessary for this from the central government, however, failed so that by 1940s, the Tyne was in worse shape than ever before. The 1950s were little better in this regard. The slow recovery from the Second World War and its accompanying austerity offered little scope for spending on environmental protection, even as local campaigns tried to bring attention to the problem. Untreated sewage continued to flow into the river. Finally, in the 1960s the situation began to change. Two new bodies were created to conserve watercourses in the area and to build sewer systems to spare the rivers. The Tyneside Joint Sewerage Committee organized the funding for a new sewer system, with construction beginning in 1972.

The interplay of case law and regulations

Dave Owen posted had this interesting thought this week at Environmental Law Prof Blog, regarding a recent discussion on canonical environmental law cases:

The idea of a canonical environmental law case might be an oxymoron.  After all, with a few constitutional law exceptions like Lujan, most classic environmental law cases interpret statutes, which generally means the case is less important than the statute, which suggests, in turn, that the statutes are really the canon.  But that's kind of boring; if we agree that the environmental law canon is the Clean Air Act, the Clean Water Act, RCRA, and so on, that makes our field sound dull in comparison to fields where cases really have defined the law.  So perhaps, if a canon, to speak metaphorically, includes the giant trees within a forest of law, we should treat the underlying statutory and constitutional framework as the soil out of which those trees grow.

But even if my strained metaphor works, that still doesn't explain why the canon should involve cases.  Cases are good teaching devices, and they do matter, but they're badly overrated.  In many areas of environmental law, regulations have much more reach and importance.  So perhaps the question we professors really should be debating, as we procrastinate class preparation and the final stages of grading, is which environmental regulations make up the field's canon. 

I agree with Dave's point that statutes and regulations are much more important in environmental law than case law (and that this is a challenge in teaching the field!). However, over time I have become increasingly aware of how important litigation has been historically in spurring and shaping environmental regulation, a point made by (among others) Karl Boyd Brooks in Before Earth Day.

I recently had a conversation with an Israeli (non-lawyer) environmental professional who had been involved in drafting noise regulations in the 1980s, who explained to me that they were designed to reflect the guidelines laid out by an Israeli Supreme Court nuisance case in the 1970s. From my lawyer's perspective this made no sense, as the case was decided according to traditional principles of nuisance law, which should have been largely irrelevant to the noise regulations, enacted under statute. But to the engineers and scientists working on the regulations, the rules laid out by the court seemed to represent some kind of eternal truth, one they were bound to give expression to in the regulations. I think that this type of thing has happened quite a lot.

Water law in imperial Russia

The current issue of Water History has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917". First, an extract (footnotes and references omitted):

Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply.

Czar Alexander II

The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “contaminating water in places where it was taken for internal consumption by throwing into it harmful substances or in any other way” (ruled in 1871) and obliged local police and municipalities to ensure that “rivers and springs in towns and villages were not polluted.” The Building Statute and the Statute of Industry prohibited the construction of “mills and factories harmful for the purity of air and water upstream of towns.” This norm was inherited from the early nineteenth century and its interpretation and application proved difficult in the later contexts of urban and industrial growth. In 1904, the Senate had to clarify that it applied only to particularly dangerous or poisonous industries, while all other factories could be allowed on condition of proper waste decontamination. 

The Powell memo

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website:

Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise.

It's a pretty amazing document. Here's an excerpt:

As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lobbyist" for the business point of view before Congressional Committees. The same situation obtains in the legislative halls of most states and major cities. One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the "forgotten man".

Current examples of the impotency of business, and of the near contempt with which businessmen's views are held, are the stampedes by politicians to support almost any legislation related to "consumerism" or to the "environment".

For more on the memo, see here.

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.