Weak states and the commons

Vincent Geloso and Félix Foucher-Paquin have posted "Weak States and the Commons: Fisheries and Economic Development in the Gaspesian Peninsula circa 1830". The abstract:

The inefficiencies of common property fisheries are well-known to economists. To avoid over-exploitation, they propose multiple forms of government solutions like taxes, quotas and the enforcement of property rights regimes designed to avoid over-harvesting. However, can there be efficient arrangements under statelessness or in the presence of weak states? One such example is the Gaspesian Peninsula (in the Canadian province of Quebec) during the first half of the 19th century. There, a single firm (the Charles Robin Company) came to dominate the market and it was able to effectively to restrict entry. In this paper, we unveil that it was able to do so by reducing the prices of imported goods that it would give to local fishermen in exchange for a part of their catch. This had the effect of deterring fishermen to contract with other merchants as well as deterring other merchants from entering the market. It also had the effect of making the region, contrary to what historians depict, richer than most regions of Canada at the time. We take this as an example of the ability to deal with commons problems in the presence of weak states.

Alexander Henderson, Causapscal River (1872-1875)

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)

Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here. 

Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.

*****

Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.

*****

Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

The Nature State

The latest English Historical Review has a review by Karen Jones of The Nature State: Rethinking the History of Conservation, edited by Wilko Graf von Hardenberg, Matthew Kelly, Claudia Leal and Emily Wakild (Routledge, 2017). Jones writes:

Building on the work of David Blackbourn, James Scott, Adam Rome, Paul Sutter, and Frank Zelko, the present volume asks us to take a fresh look at the mechanics of power and governmental activity in matters of conservationist enquiry, taking in ideas about global networks, modernity, localism and the politics of negotiation. Implicit here are two concepts: firstly, a challenge to the idea of American hegemony in leading the world in conservation thinking and, secondly, a sense that in embarking on various kinds of environmental governance, state organs were able to propagate their influence and reach. Here the book reveals a foundational tension, arguing for the ‘irregular but near-universal character of the nature state’ (p. 9), while also pointing to the way in which different geographies, constituencies and structures created a site-specific patchwork polity marked by formal and informal demonstrations of authority.

*****

... the book is provocatively, but somewhat deceptively titled. In fact, in the story of environmental resources and political capital set out here across diverse geographies, we find not one state but many, sometimes redoubtable, sometimes hamstrung, and always complicated.

Coke, Popham, and Commissions of Sewers

Eric Ash's The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016) was recently reviewed by Bob Silvester in Environment and History (for an interview with the author see here). Famous common law judges play a big role in this story. The review reports that Ash:

Sir John Popham,
copy by George Perfect Harding, after unknown

succeeds admirably though is in fleshing out the procedures – there is a masterly commentary on the commissions of sewers – and events that have been dealt with only cursorily in the past. Lord Chief Justice Popham’s plans to dry out the Great Level, which resulted in little more than the construction of a large drain known as Popham’s Eau lying east of March in Cambridgeshire, seemed an obscure event when I worked in the Fens in the 1980s...; just what Popham sought to achieve and how it fitted into the overall sequence of drainage ventures is now much clearer through the careful analysis of archival material.

Regarding the author's statement that his "principal goal is to use the drainage projects to connect the broader political, economic, social and environmental developments of the era", Silvester writes that "there are times when fenland drainage appears to be subsumed within a broader discourse as simply an outstanding example of state-building in progress. It accounts for the lengthy digression on Lord Chief Justice Coke’s interference in fenland affairs around 1609".

For more on Commissions of Sewers and drainage law, see here.

Trends and approaches to the commons in historiography

Next to last in our series on "The Tragedy of the Commons at 50" (the previous post, on Carol Rose's article, is here) is Giacomo Bonan's piece, "Confronting Hardin: Trends and Approaches to the Commons in Historiography". The abstract:

This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject. It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research. The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long-enduring institutions that efficaciously manage commons. The second line has focused on the conflicts caused by exogenous interferences in the management of common land, such as state or market intervention, and their social and environmental consequences. The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level. The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis.

Thomas Malthus

Law and environmental-technological change

Construction crane at Norris Dam (TVA) (Currents of Change)

Yesterday's New York Times had a piece by Naomi Oreskes and Erik Conway on the need for government help in making the technological transformations necessary to avert disastrous climate change - in particular, phasing out fossil fuels by the year 2050. They write:

None of the major technological transformations of the 19th and 20th centuries were the product of the private sector acting alone and responding only to the market. Railroads, radio, telegraph, telephone, electricity and the internet were all the result of public-private partnerships. None was delivered by the “invisible hand” of the marketplace. All involved significant interventions by the visible hand of government.

What does this mean for us? Right now, government is widely seen as inefficient and ineffective, and our needs are thought to be best addressed by the private sector, through entrepreneurship, venture capital and Silicon Valley-style “disruption.” But unless we acknowledge the need for a substantial government role, we are going to be stuck, because change driven solely by the marketplace is unlikely to suffice.

Some might object that our current challenge is vastly different from those met by past technological changes, because we’re not just talking about a thing, like a radio or cellphone, but about changing our entire energy system. But these earlier transformations involved systems, too. Just as energy technology isn’t one thing, neither were the railroads, radio, electricity or the internet. Those systems all involved many parts, including federal, state and local policies to support them (the land grants that made the railroads possible, for instance, or role of the Federal Trade Commission in licensing radio and television stations). 

Regional planning in a decentralized state

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland". The abstract:

This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs; the proportional division of the costs; and the use of compensation for damage suffered. These practices respected local autonomy and broadened the level of support among the local stakeholders. The effectiveness of the practices was strengthened when they were used in combination with a technique provided by the Habsburg state: the enqueste or inquiry. This was a technique for gathering reliable, relevant and detailed information at the local and regional level. In this case study, the information on landscape and water use, collected by the 1544 Commission of Inquiry, facilitated cooperation between communities that enjoyed a high degree of self-governance.

The water commons beyond property and sovereignty

Irrigation canal in Provence

Continuing the series of posts on "The Tragedy at 50" (the first one is here), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty":

Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public. 

Royal forests in Poland and Lithuania

Title page of Jan Kochanowski’s Satyr albo dziki mąż (1564),
a political satire in verse that criticized forest exploitation.
(National Digital Library Polona, from the article)

Forest law continues to provide grist for scholarship.

October's Environmental History published, alongside an article on early Chinese forest law, Mateusz Falkowski's "Fear and Abundance: Reshaping of Royal Forests in Sixteenth-Century Poland and Lithuania". The abstract:

This article analyzes new restrictive forest legislation announced by king Sigismund Augustus (d. 1572) in Poland and Lithuania. In the sixteenth century, eastern Europe remained the most densely forested region on the continent; Poland and Lithuania, however, were blessed not only with resources but also with an unusual combination of plains, forests, rivers, and seaports that facilitated the development of large-scale forest industries. Drawing on a combination of royal documents, domain surveys, correspondence, customs registers, and contemporary literature, I argue that the significant resources available to the king allowed him to think of the forest economy and long-distance trade in its products as the backbone of state finances. I recognize changes in the forest regime as part of the greater state reforms redefining the relationship of the king’s subjects to his domain, as well as a strategic move designed to increase treasury income to finance the military during the Livonian War (1558–83). I also argue that changes in the forest regime were established because of the abundance of resources, unlike in many contemporary European states that introduced prohibitive laws as a result of wood shortage fears.

For other recent takes on forest law see here, here and here, or click on the "forest" label.

Forest regulation and its critics in early China

The latest Environmental History has an article by Ian Matthew Miller, "Forestry and the Politics of Sustainability in Early China", with some fascinating discussion of arguments for and against regulation in Chinese philosophy. The abstract:

Between the sixth and second centuries BCE, Chinese states developed offices to oversee the sustainable use of forest resources. This era, often cited as a period of rampant environmental degradation, also saw the emergence of a discourse of sustainability. The early philosopher texts criticized the environmental and moral degradation of their era in order to promote specific policy interventions. In response to the deforestation they depicted, moralist and pragmatist philosophers alike argued for regulations on land use as the basis of a sustainable political order. Early states used these ideas to justify state forestry, culminating in extensive forest bureaucracies under the Qin and Han empires in the second and third centuries. These forestry institutions were among the earliest in the world, preceding state forestry programs in Europe and Japan by nearly two millennia. Yet even at the early apex of state forestry, many thinkers criticized government regulation as immoral or ineffective and promoted the self-sufficient community as an alternative basis of conservation. These early texts were established as the core of the Chinese philosophical tradition, and their arguments for and against state regulation became the basis of many later debates over sustainability and institutional forestry.

9th century version of the character yu (hunter or forester)
(Chuan Cao, 2016, from the article)

Water rights IV: Property in water: Empirical and historical evidence

(Continuing the series on water rights:)

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions (Ostrom et al., 2010):

Elinor Ostrom

Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other three systems, however, have mixed records in terms of sustaining water resources, including both great successes and massive failures. Thus, the ability of a type of ownership to enhance sustainable resource management depends on a number of other factors…

Many legal and environmental historians have focused on historical transitions between property regimes in water, particularly two major developments in the Anglo-American legal world: the development of the "reasonable use" riparian regime in the early to mid-nineteenth century, and the rejection of riparian rights in favor of the system known as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains Thesis" (Webb, 1931), have supported the economic view associating with aridity with private rights in water (Robert G. Dunbar (1985) 'The Adaptability of Water Law to the Aridity of the West', Journal of the West 24: 57; Percy, 2005). Yet aridity has also been associated with strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic civilizations" with "oriental despotism", applied to the western American context by Donald Worster (1985).

Drainage, law, and statebuilding

New Book Network recently posted an interview with Eric Ash about his new book, The Draining of the Fens: Projectors, Popular Politics, and State Building in Early Modern England (JHU Press, 2016). NBN writes:

Today “The Fens” is largely a misnomer, as the area of eastern England is now largely flat, dry farmland. Until the early modern era, however, it was a region of wetland marshes. Eric Ash‘s book... describes how The Fens was transformed into the environment we know it as today. As Ash explains, the marshes supported a population that took advantage of the lush grasses produced by the regular flooding to engage in animal husbandry, with flood control managed locally through appointed commissions of sewers. In the late 16th century, however, a combination of environmental change and political shifts led the royal government to support proposals for large-scale drainage projects that would turn the wetlands into farmlands. Though the plans’ advocates argued that drainage would improve the value of the lands in the region, the locals resisted such efforts to disrupt their ways of life through a variety of legal and extralegal means. In response the crown moved from efforts to develop consensus for the plans to asserting royal authority in environmental management in order to start the projects, beginning by the 1620s the first of a series of efforts that over the course of the next half-century drained many of the fens in the region.

American regulation of water pollution

Water filtration plant at Lake Montebello, Maryland, 1915

This Day in Water History recently posted a Municipal Journal and Engineer article from 1909, "Stream Pollution in America", which surveys some of the state-level regulation of water pollution going on at the time. The blogger notes that "we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored", but I'm not sure the situation today is so different. Some excerpts from the 1909 article:

At a Conference of State and Provincial Boards of Health of North America, held in Washington last June, the Committee on the Pollution of Streams appointed last year presented a report in which it gave some data concerning the extent to which the pollution of streams was being regulated by the various States. Ohio, New Jersey and Kansas have, according to this report, passed laws during the last few years which ”are especially worthy of note as indicating advancement and the confidence which the Legislatures of these States must feel in these State Boards of Health.” From the reports of the secretaries of the Boards of Health of the several States they abstract a number of statements showing what is being accomplished by them.

*****

In New Jersey there are 54 sewage purification plants in operation or ready for operation by municipalities and large public institutions. The policy of that State is to allow no untreated sewage to be discharged from new systems into waters of the State. The Board of Health is also compelling municipalities to install purification plants on existing sewerage systems, and 22 are now under orders to cease pollution of the streams, these including all municipalities on the Delaware River.

The Ohio State Board of Health has been asked to investigate 18 complaints under the act prohibiting stream pollution, and has ordered sewage disposal works to be installed in four of the cities before Jan. 1, 1910. The constitutionality of the law under which they act has been questioned, but if decided in their favor they hope to prevent the pollution of all the streams in the State.  

Private property in riparian rights systems

The issue of private property in water is a well-studied one, but usually in the context of systems based on appropriative rights. This Day in Water History reproduces a 1915 article from the Municipal Journal (I'm assuming it's not an April Fools joke) that shows that riparian-rights systems, usually thought of as common-property regimes, could be raise the same privatization-related issues typically identified with appropriative systems - overuse, concentration, and demands for public control:

Boston, Mass.-That the state’s water resources are being gobbled up by private interests and that unless some change of policy is immediately instituted Massachusetts will have to face a water famine is brought to the attention of the legislature in a report on the conservation and utilization of waters by the state board of harbor and land commissioners. The amount of water power used by manufacturers has increased enormously in the last few years. For instance, proprietors of Locks and Canals in the city of Lowell consumed in 1912 about 11,620 horsepower, developed from the Merrimac river, according to statistics of the United States Bureau of Corporations. A survey in 1915 by the harbor and land commissions shows that these same Locks and Canals now use 29,911 horsepower. The water used and wasted by municipalities is also mentioned in the report. The commission urges that a definite plan be laid out by the state for the control and conservation of the water resources. The Merrimac river is capable of further development, according to United States Engineer C. C. Covert of the Geological Survey, who is quoted as saying that, although the most favorable opportunities for storage on the Merrimac are being utilized, there are still many unutilized reservoir sites available. The commission on harbors and public lands holds that unless the state within a reasonably short time asserts a definite policy of control, the waters in the rivers and natural streams, which belong to the people of the whole state will be devoted entirely to private uses. In contrast to the situation in Maine, New Hampshire, Vermont, New York and the province of Ontario, where a conservation program is now under way, nothing at all has been done in Massachusetts. The control which exists of the water resources is divided among four or five different bodies, no one of which has complete authority. In the year 1912 the United States Bureau of Corporations made a tabulation which showed that 130,620 horsepower was owned by the larger companies in Massachusetts. The harbor and land commissions, canvassing the same people, have discovered that within the three years the total horsepower developed has increased to 264,152, Massachusetts manufacturers are now paying nearly $26,000,000 a year for the purchase of fuel for power purposes. Intelligent plans to avoid freshet damages and to store water for irrigation are also urged.

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:

Reagan the environmentalist

A little while back Dan Farber at Legal Planet posted "Ronald Reagan – Environmentalist Governor". Some excerpts:

It may surprise you to learn this — it certainly surprised me. But Ronald Reagan has been called “the most environmental governor in California history — protecting wild rivers from dams, preserving a Sierra wilderness by blocking highway builders, creating an air resources board that led to the nation’s first auto smog controls.” This may be an exaggeration, but there were some major environmental achievements.

***** 

[An LA Times story] recounts Reagan’s support for legislation to create the Lake Tahoe interstate compact in order to save the lake.... In addition... Reagan was instrumental in securing legal protection for California’s wild and scenic rivers. 

Perhaps most notably, Reagan signed the California Environmental Quality Act. He also signed the signed the Mulford-Carrell Act, combining the Bureau of Air Sanitation and the Motor Vehicle Pollution Control Board to create the California Air Resources Board (CARB). Reagan appointed the first head of the Board, Arie Jan Haagen-Smit, a Cal Tech chemist who was responsible for linking smog to automobile emissions. By all account, this “stubborn Dutchman” was a dedicated and successful champion of pollution control.

Reagan as President was a much different figure. As we all know, his Administration was no friend to the environment. But even during his Presidency, there were some bright spots, such as his enthusiastic signing of the Montreal Protocol to protect the ozone layer.

In short, Reagan was a more complicated figure than the stereotyped right-winger that both ends of the political spectrum have portrayed. And in his California days, he had a legitimate claim to be considered an environmentalist. 

How focused should we be?

An issue always lurking around any historical study is finding the right scope, whether in terms of time, space, sources, methods, or whatever. Continuing our coverage of the special issue of Western Legal History on Southern California water, here's what Peter Reich's introductory article has to say about my book on Colorado water law:

David Schorr stakes out [a] key western state as his bailiwick in The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier. He maintains that distributional equity, not economic efficiency, was the primary basis for legislative passage and judicial elaboration of the prior appropriation doctrine.

Reich adds in a footnote:

Schorr's work is at odds with Donald J. Pisani's "Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century". According to Pisani, prior appropriation's purpose was to "develop resources as rapidly as possible" in order to facilitate mining and agriculture. Schorr and Pisani use similar evidence to arrive at opposite conclusions; the former's focus on Colorado in contrast to the latter's coverage of several states, especially the larger and more corporate-dominated California, may explain their differing analyses.

The environmental amendment to the Pennsylvania Constitution

The Environmental Law and Sustainability Center at Widener University recently hosted a talk by Franklin Kury on “The Environmental Amendment to the Pennsylvania Constitution: How It Came to Be and Where It is Going”. You can view the lecture here. The website explains:

Kury was elected to the Pennsylvania House of Representatives for three terms (1966–1972), where he was the author and lead advocate for the environmental rights amendment to the state constitution (Article I, Section 27).  In 1972, he was elected to the first of two terms in the Pennsylvania State Senate, where he became a leader in government reform. 

Nicholas A. Tonelli, Meander (Susquehanna River, Asylum Township)

Oil and gas interests, government, and legal scholarship

Over on Jotwell, Ezra Rosser recently gave a glowing review to Oliver Houck's recent article, "The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone", writing that it "is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty". There's no abstract for the article, but I'll quote at length from the review, which not only outlines the environmental-legal-historical argument, but also has some valuable thoughts on legal scholarship:

Sam Kittner, State Capitol of La. and Exxon Explosion, December 24, 1989 (LOC)

Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction.

Tamara Lotner Lev, a doctoral student writing (under my supervision) on environmental regulation of offshore oil and gas drilling, has come to a similar conclusion about the role of Israeli regulators, calling it "reverse capture".

Rosser also sees Houck's article as a model piece of scholarship: