Regulating Lake Tahoe

Jerry Frank recently reviewed Michael Makley's Saving Lake Tahoe: An Environmental History of a National Treasure (U. Nevada Press, 2014) for H-Environment. Frank writes that at the heart of the book lays the belief that “the lake’s heritage must take precedence over the unrestricted use of private and commercial properties” (p. 1):

The vast majority of the book offers a blow-by-blow account of the various attempts to manage a unique and highly desirable landscape that straddles two states and encompasses a complex bag of economic, legal, and environmental interests. The narrative focuses primarily on the 1969 creation of the first bistate regional agency—the Tahoe Regional Planning Agency (TARPA)—and the “innumerable problems” it has faced in attempting to manage this complex ecological resource (pp. 1, 3).

*****

The task at hand—balancing private property rights against environmental health of both common and shared resources—was exceedingly complex. And, as the author argues, the structure of TARPA has seldom been up to the challenge. Those in favor of economic development, including powerful casino interests, often controlled TARPA and pushed a pro-business agenda. This often pleased many, but not all, of the locals. Many concerned with the environmental health of the lake, including leadership of the Sierra Club and many elected officials from the state of California, were often at odds with further development around the lake and in favor of more stringent environmental protections. The difficulties in getting these interests to coordinate their efforts has led to a seemingly endless string of disputes, some of which have found their way to the Supreme Court.

There is much in Saving Lake Tahoe of value. It is certainly the most detailed look at the complex efforts to share this fragile and valuable resource. That said, there are deficiencies. Books that focus on policy issues must balance the details required to understand the fine points of the policy against providing a compelling narrative. In this instance, the complex history of TARPA combined with the author’s close personal connection to the material often makes it difficult for him to step away from the weeds and offer broader analysis of the proceedings. Had he used a stronger analytical frame he would likely have had more success in this regard. Arthur F. McEvoy’s The Fisherman's Problem: Ecology and Law in the California Fisheries (1986) comes immediately to mind. Lake Tahoe, which is both a private and common resource, presents a history of failed regulation. At the heart of that failure was the inability of a myriad of governing bodies to cooperate in such a way that management of the resource reflected the dynamic nature of the resource itself. Had the author engaged in a more rigorous way the deeper meaning and import of Tahoe’s history by engaging more of the historiography of resource regulation, Saving Lake Tahoe could have had a greater impact. Still, for those interested in the decades-long battles to save this incredible resource, Saving Lake Tahoe will be of value. 

Lake Constance fisheries

The latest Environment and History has an article by Michael Zeheter, "Order in the Lake: Managing the Sustainability of the Lake Constance Fisheries, 1350-1900". The abstract:

Around 1350 the authorities of the Lake Constance region began to regulate the local fisheries by issuing fishermen's ordinances and signing fisheries treaties with other principalities with the stated interest of protecting the fish stocks, which were considered a commons. The fishermen and their guilds were heavily involved in this process, since some of their practices - like the destruction of spawn and the catching of young fish - could have devastating consequences. The fishermen and their authorites decided regularly for more than four centuries to prioritise the long-term preservation of the fish stocks and not short-term profits to be made on the local fish markets. Thus, they avoided the disastrous outcome of a 'Tragedy of the Commons'.

Ludwig Hohlwein, Konstanz am Bodensee

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. 

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

William Colby, first environmental law prof?

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

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

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

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

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

Moral and environmental pollution

Front cover for a booklet advertising tablets for coughs and colds brought on by smog (1913) (Wellcome Library)

Not long ago the occasion of the Jewish new year gave me cause to write on the connection between moral and environmental catastrophe. Brett Beasley recently came at the topic from another historical angle in the Public Domain Review, in "Bad Air: Pollution, Sin, and Science Fiction in William Delisle Hay’s The Doom of the Great City (1880)". Beasley writes that Hay's book "imagines the entire population of London choked to death under a soot-filled fog. The story is told by the event’s lone survivor sixty years later as he recalls 'the greatest calamity that perhaps this earth has ever witnessed' at what was, for Hay’s first readers, the distant future date of 1942." He goes on:

Before we canonize Hay as an environmentalist and his story as An Inconvenient Truth in Victorian garb, we have to look at the story’s other features. Readers of The Doom of the Great City unfailingly notice that the story does not fit easily with other science fiction narratives, but seems to belong also to another class of tales, which Brian Stableford has called “ringing accounts of richly deserved punishment”. This is because Hay’s narrator seems to slide back and forth between material and moral explanations for pollution. While he talks of how “In those latter days there had been past years of terribly bad weather, destroying harvests”, he adds in the same paragraph, “prostitution flourished rampantly, while Chastity laid down her head and died! Evil! — one seemed to see it everywhere!”

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:

Public and private rights in waterways

I recently came across Maureen Brady's "Defining 'Navigability': Balancing State-Court Flexibility and Private Rights in Waterways". First the abstract:

Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be “navigable” makes it public property, while declaring it “non-navigable” leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups.

The scope of this authority to make navigability doctrine — especially whether it gives state judges the ability to change the definition of “navigability” once declared — is unclear. Current law fails to curb abuses of navigability doctrine and pays scant attention to constitutionally protected property rights. These issues are particularly salient today: prompted by large-scale water diversions, droughts, and fears of water shortages, twenty-first century litigants wishing to prevent water privatization are increasingly seeking new judicial declarations of “navigable” waterways.

This Article provides an original history and analysis of state-law navigability doctrine and the limitations that should be implemented. First, it shows how this unusual common-law authority was created and how state courts exercised it in two moments in history when water rights became vitally important: the explosion of American development in the mid-nineteenth century and the rise of the environmental movement in the mid-twentieth century. Building on this history, this Article argues that to avoid abuses while permitting reasonable exercises of judicial power, navigability must be viewed through a national constitutional lens. The Takings Clause and Due Process Clause — independently or in combination — can provide guidelines that permit evolution while safeguarding individual rights.

I'm not sure about this last part - how can we know if property was taken without reference to state court decisions about the limits of private rights? The history of expansive definitions of navigability is a long one, outside the US as well.

For more on public rights in navigable streams, see here and here.

Environmentalists, evangelicals and property rights

Dan Farber recently made an interesting comparison at Legal Planet:

Today, evangelical Christians tend to be aligned with conservatives in defense of private property. But that was not always true. In the 19th and early 20th Centuries, evangelicals launched a major attack on property rights. As historian John Compton documents in a recent book, they also adopted the idea of the “living Constitution” to justify their revisionist view of property.

The conflict between property rights and religion was sparked by moral opposition to drinking and gambling. Evangelicals wanted to ban alcohol and lotteries, both of which had been long-standing, widely accepted features of American life. Lotteries had even been used to finance the construction of churches. But prohibition of alcohol sale and lotteries threatened to destroy vested rights in those activities. Evangelicals argued that changing moral judgments could render some existing property rights illegitimate. They were largely successful in this effort.

These days, it is environmentalists, rather than evangelicals, who want to revise concepts of legitimate property rights. They believe that some uses of property, such as destroying wetlands or the habitats of endangered species, are illegitimate and undeserving of constitutional protection. It is somewhat ironic that the theories used to justify these views have their roots in the arguments of what would now be called the Religious Right.

Carry A. Nation (1903), arrested over 30 times for her "hatchetations" of Kansas saloons.
She occasionally greeted bartenders with "Good morning, destroyer of men's souls".
(Iowa State Wine Grower News)

 For more on the affinities between evangelism and environmentalism, see here.

Antimonopoly in Public Land Law

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

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

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

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

More on antimonopoly in American natural resource law here.