Regulation by river commission

This Day in Water History recently posted the following:

December 18, 1913: Municipal Journal article—To Prevent Fox River Pollution. “Geneva, Ill.-Acting under authority conferred at the last session of the legislature, the State Rivers and Lakes Commission has ordered officials of the cities of Batavia, Aurora, Geneva, Elgin and St. Charles to take immediate steps to prevent the pollution of Fox river by sewage and factory wastes. The five cities were given until April 7, 1914, to prepare plans and specifications for filtration or sewage disposal plants or otherwise prepare to discontinue the emptying of sewage into the river. The Fox river cases are the first of the sort to be acted upon by the commission. Similar action will be taken in numerous other cities located along Illinois rivers or lakes if complaints are made and substantiated. Lake Forest and other North Shore cities that have complained of lake water pollution by factories are expected to take their grievances to the commission. Witnesses before the commission testified that during low water periods the Fox river was polluted to such an extent as to he a serious menace to the health of 200,000 inhabitants of the Fox river valley. It was also shown that thousands of tons of ice were taken from the river every year and sold in these cities and in Chicago. Another objection to the emptying of sewage into the river was the fact that fish were unable to survive.”

Commentary: River commissions in several states were beginning to take action against the grossest pollution problems in the early part of the 20th century.

For more on regulation of water pollution in the Great Lakes see here and here.

Natural resource law in Salzburg

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

Art and the history of environmental law - part V: Art and the effects of environmental law

The latest in a series based on my article on art and history of environmental law. After looking at what art can teach us about the historical background of environmental law, we turn now to what we can learn from it about environmental law's effects.

James W. Earl, Twelve Square Miles, 2010 (courtesy of the artist)

Hugh Ferriss, Study for Maximum Mass Permitted
by the 1916 New York Zoning Law, Stage 4, 1922,
Smithsonian Design Museum, Cooper Hewitt collection
(courtesy of the Smithsonian Institution)

The effects of law on landscape are clearly seen in the case of land use law. The U.S. Northwest Ordinance’s imposition of Cartesian order on the living earth is perhaps best appreciated through often beautiful satellite or aerial images (e.g. above). The effects of New York City’s famous zoning ordinance of 1916 were given visual form in Hugh Ferriss’s drawings (e.g. right) and in photographs of the architectural icons built under the code (e.g. below). And the environmental upheaval wrought by American postwar suburban zoning ordinances was given early expression in the utopian/dystopian photographs of places like Levittown, Long Island (below).

Samuel Gottscho, Chrysler Building Midtown Manhattan New York City 1932

Thomas Airviews, Aerial view of Levittown, 1949
(courtesy of Levittown Public Library)

Environmental regulation by public service commission

December 10th's This Day in Water History contains the following interesting snippet, offering some insight on how environmental regulation was carried out before the establishment of agencies with "environment" in their title:

December 10, 1910: Municipal Journal article—Protest Against Impure Water. New Albany, Ind.-Col. Charles L. Jewett, acting for the law department of the city of New Albany, has filed with the Indiana Public Service Commission in Indianapolis a petition asking for the investigation by the commission of the water supply furnished by the New Albany Waterworks Company. It is alleged in the petition that the water is not pure and wholesome, and that the company has not complied with the terms of its contract and franchise, granted August 26, 1904, and for more than three years has failed, neglected and refused to furnish the city pure and wholesome water, as its contract specifically provided. The petitioner avers that the water company has furnished nothing but impure and unwholesome water, containing large amounts of mud, filth, sewage, industrial waste and other foreign matter. The petitioner asks that an investigation be made by the Public Service Commission, and that an order be entered requiring the water company to make improvements, additions and changes in its system.

Commentary: A similar lawsuit was by Jersey City, NJ against the Jersey City Water Supply Company in 1905.

Anyone know what the outcomes of these petitions were?

Update: Michael McGuire points out that the Jersey City lawsuit was covered in detail in his book, The Chlorine Revolution: Water Disinfection and the Fight to Save Lives (AWWA, 2013).

Art and the history of environmental law - part IV: Art and the conditions of environmental law (twentieth century)

Following Part III of this series, featuring the French Impressionists and Oscar Wilde, we move on to the twentieth century.

Franz Marie Jansen, untitled, from Industrie, 1920

In the first half of the twentieth century, air pollution seems to take on a progressively darker cast, both literally and figuratively. While it is difficult to read the pollution in many posters of the interwar era, such as one for the 1925 Paris Exposition Internationale des Arts Décoratifs (above), as anything but a symbol of progress, in the works of the German Expressionists such as George Grosz and Franz Marie Jansen (right), pollution often seems an inseparable part of their generally bleak world view.

George Grosz, Outside the Factories, 1921

Beyond the cultural and aesthetic, American art in this period also seems to begin to engage with pollution as a political issue, and thus potentially a legal one. An early but suggestive understanding of pollution is offered by the symbolist Elihu Vedder’s mural Corrupt Legislation (below) created for the new Library of Congress building around 1898. Art historian Richard Murray explains:

A call to research

Dave Owen recently posted the following at Environmental Law Prof Blog:

(from NMFS)

In environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990. In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law. Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

Art and the history of environmental law - part III: Art and the conditions of environmental law (more Impressionists and Wilde)

Following Part II of this series, I continue the discussion of art and the conditions of environmental law as seen in the work of the French Impressionists.

Monet and Pissarro produced many landscapes of the industrializing Seine Valley around Paris, as did other Impressionists and Post-Impressionists. Manet’s 1874 Argenteuil, les canotiers (1874, above), with its idyllic foreground and smoky background, seems uncertain in its attitude to industrial pollution. It was ridiculed by a contemporary critic who insinuated that the blue of the river must have been the product of industrial pollution, yet T.J. Clark sees it as the picture in which effort was made to place in order the middle class, the countryside, and industry “and insist they belong together.”  

Gustave Caillebotte’s depictions of the same site show a cubist-like ability to shatter reality into multiple points of view. While his Boats Moored at Argenteuil (1883, above) shows no hint of the industry in the area, Factories at Argenteuil (1888, right) shows a bleak industrial landscape with gray smoke feeding gray skies, reflected again in the gray water. La Seine à Argenteuil (c. 1892, below), with its almost natural landscape dominating the foreground and smoking factories in the background, juxtaposes these two aspects of reality, distinguishing, on the one hand, between pristine nature and industrial pollution, yet at the same time melding chimney smoke and natural clouds.  Are these depictions of Argenteuil simply the artist’s attempt to depict different facets of reality, a celebration of industrialization, or a critique and warning of the threat posed by modern pollution to the aesthetic of nature and countryside?

Ecosystem services

I recently came across a very interesting article by Erik Gómez-Baggethun, Rudolf de Groot, Pedro L. Lomas, and Carlos Montes, "The history of ecosystem services in economic theory and practice: From early notions to markets and payment schemes", published in Ecological Economics in 2009. Beyond its explicit subject, it contains an extensive literature review of the history of thought about the environment in classical and neoclassical economics. (For an article by Agnar Sando on a similar topic, see here.) The abstract:

This paper reviews the historic development of the conceptualization of ecosystem services and examines critical landmarks in economic theory and practice with regard to the incorporation of ecosystem services into markets and payment schemes. The review presented here suggests that the trend towards monetization and commodification of ecosystem services is partly the result of a slow move from the original economic conception of nature's benefits as use values in Classical economics to their conceptualization in terms of exchange values in Neoclassical economics. The theory and practice of current ecosystem services science are examined in the light of this historical development. From this review, we conclude that the focus on monetary valuation and payment schemes has contributed to attract political support for conservation, but also to commodify a growing number of ecosystem services and to reproduce the Neoclassical economics paradigm and the market logic to tackle environmental problems. 

Harold Hotelling, whose 1931 "The Economics of Exhaustible Resources"
laid the foundations of modern resource economics

Art and the history of environmental law - part II: Art and the conditions of environmental law (Impressionists and Dickens)

Following Part I of this series, today I take up art and the conditions of environmental law.

A survey of paintings and other works of art from Western Europe and North American reveals that air pollution was a salient fact in the pre-1970 industrialized West. This point, while basic, is not trivial, as one might have imagined that the relative lack of advanced legislation in this area was due to clean skies, or at least to a lack of awareness of the problem. Yet it is clear that artists from Turner to the French Impressionists and on through the American Works Progress Administration were fascinated by air pollution. The aesthetics and politics of this fascination will be explored later; at this point it will suffice to demonstrate its prevalence.

A good place to start is the French Impressionists. Though associated today with paintings in and of nature, they were strongly attracted to scenes of industrialization and modernizing landscapes. The movement was named after Claude Monet’s Impression, soleil levant (1872-73, right), a painting relevant to our topic. The rising sun is indeed prominent in this landscape of Le Havre harbor, but the left side of the painting is dominated by smoke-belching smokestacks and their reflections in the water. Their activity suggests that the gray “mist” enshrouding the rising sun and streaked through the sky above and to the right is in fact the product of air pollution, not morning mists or the artist’s hazily romantic vision.

Many of Monet’s other paintings feature air pollution as well. His paintings of London typically feature chimneys and smokestacks spewing thick clouds of smoke into the air of a city covered in a thick layer of air pollution (often denoted “fog” in the works’ titles). Perhaps most striking are the paintings purporting to be studies of the effect of sunlight on the thick London air; the reference to sunlight in the names of these paintings seems almost ironic. In Le Parlement, effet de soleil (1903, left), for instance, the sunlight indeed plays upon the Thames on the right of the picture, yet in the overall composition the sun’s rays are overwhelmed by the thick, polluted air, much as they are in other paintings in the Houses of Parliament series.

Dickens provides a literary counterpart to Monet’s paintings of London’s air pollution in the opening of Bleak House:

London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. . . . Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes—gone into mourning, one might imagine, for the death of the sun . . . .

American Energy Policy in the 1970s

American Energy Policy in the 1970s, edited by Robert Lifset (U. Oklahoma Press, 2014), was recently reviewed by Peter Grossman in Environmental History and by Fredric Quivik in Business History Review. Grossman is critical:

In general the book seems to be stuck in the 1970s in the same way current policymakers are stuck. It is a major lapse that there is not a careful reflection on the assumptions behind the policies proposed and enacted during the period. Nowhere is there a discussion of the neo-Malthusian mindset that underlay much of the thinking of members of both parties and led to policies such as the enormous synthetic fuels program that were based on forecasts that seemed to fit the facts but turned out to be simply absurd.

Nor does there seem to be an appreciation of the conditions under which policy action was undertaken. Political leaders on both sides, as Jay Hakes argues correctly in his essay, often agreed on the need for aggressive policies—even when they disagreed on what precisely those policies should be. But the most radical legislation was enacted in a state of near panic in which the sense of national crisis was all pervasive. As policymakers, members of Congress and officials of the Nixon, Ford, and Carter administrations needed to be seen as “doing something” about a problem that was so deeply afflicting the general public (but which neither the public nor the policymakers actually understood). In the summer of 1979, for example, legislators were said to be afraid to go back to their districts for the July 4 holiday because of voter anger, and they were said to be ready to vote for any legislation that promised a solution “even if its [sic] wrong.”

There are other curiously 1970s-blindered claims. It is at least suggested that the United States missed a great opportunity to develop alcohol fuels—called gasohol then, ethanol, today—but the ethanol program made no sense, then or now. In fact, in 1978 the Department of Agriculture produced a report that ethanol would have a negative energy balance—more energy would be needed as an input than would be produced as output—and that it would raise food prices. Ronald Reagan, who often seems a bad guy in the story for killing some of these programs, did not end gasohol and synfuels because they were passed by Democrats, but rather because they made no economic sense in the 1980s and in fact never did unless you accepted the gloomy Malthusian vision especially prevalent in the Carter administration.

The most pertinent observation in the book is that of historian Joseph A. Pratt, which is noted only in passing. Pratt is quoted to the effect that a political system like that of the United States is “uniquely ill-suited to handle energy policy.” That seems an irreducible constraint on the kind of activist (often grandiose) energy undertakings of the 1970s and an issue that should have had a much larger place in these essays.