Law on Nantucket

G. Edward White recently posted "Law on Nantucket", a rumination on the ways people have written about the island and its law. The essay concludes (note in the original):

Underneath Nantucket’s beauty, benign atmosphere, and apparently paradisial prospects lay, as all islanders knew and visiting mainlanders quickly understood, its environmental fragility. [note: Despite what would seem to be the foundational status of environmental law on Nantucket, I have been unable to find any sustained scholarly analysis of the topic.] The consequences of human and natural pressure on the earth, now thought of as mainly occurring over vast stretches of time, seemed telescoped in Nantucket’s natural history. Its native tribes had so few competitors to their hunting, fishing, and environmental activities that Nantucket’s original jack pine and spruce forests were quickly decimated, its codfish supply dramatically reduced, and its wild animal population, never vast, adversely affected by the domestic animals brought by the English, all in a century or two. The island’s constant exposure to the Atlantic ocean, coupled with climate change, resulted in ponds disappearing, bays changing course, and cliffside areas becoming flat beaches in the lifetimes of individual inhabitants. Erosion of the Nantucket shoreline, because the eroding force is the huge, volatile, and seemingly whimsical North Atlantic, has been constant and at times dramatic. The moist soil that spawned cranberry bogs on the island alternately dried up or was flooded over decades, not eons. Ancient places of spiritual significance, or hills with breathtaking prospects, disappeared over time as the topography of the island appeared to constantly change. Today homes and paths on seaside cliffs are in danger of falling into the ocean; there are numerous natural preserves being safeguarded from human invasion; and the areas where aspiring non-resident owners can buy property are shrinking. And in the winter of 2014-15 islanders received a possible vision of the future: a massive blast of winter air and violent ocean conditions that destroyed some beaches on the island’s north shore.

So the interaction of law with the environment is now the best way of rendering what law on Nantucket now is. That is not to say that most lawyers on Nantucket gravitate to environmental work, or even that much of the environmental law and policy affecting residents is actually generated on the island. It is to say something different: that the place which Nantucket is – an island with a unique topography, paleontology, archaeology, and social and economic history – is now a place where law is all about the environment. Nantucket is a case study, writ small, of humans’ ability to coexist with and to profit from, but also to destroy and to be threatened by, the natural world. It is a place that cries out for law, and at the same time a place that illustrates the limits of law. Small wonder that people write about it.

Public ownership of water

Yesterday's "This Day in Water History" had the following historical editorial, including not only the record of enforcement action for exceeding a water allocation but also some historical justification for public control and ownership of water resources:

June 14, 1919: Municpal Journal and Public Works editorial. Public Control of Water. “Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it.

The right of state or federal government to guard the quality of river waters has been recognized and become familiar, and western states have long controlled the amount that could be withdrawn for irrigation; but limiting the amount that cities can use for their public supplies is a novelty. There is every reason, however, why power to limit the amount that can be used should rest in a central authority and be exercised on occasion. No one city has a right to monopolize a water supply because it “saw it first.” The water flowing in the rivers of a country comprises the run-off from every square foot of land in that country; and as the entire area yielded it, the entire area has a right in it. Moreover, to permit one or a few cities to monopolize all the water available in a state would be fatal to the growth in population and industrial development of the state outside of such cities.

The New Jersey plan seems to be a rational one and one that all states must adopt in some form, sooner or later; and the sooner, the less will be the confusion and individual hardship and the greater the benefit resulting therefrom.”

Rockaway River (Capture the Moment)

Scalia's shadow

James May recently posted "Environmental Law Jurisprudence and Associate Justice Antonin Scalia's Legacy". The abstract:

Associate Justice Antonin Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of administrative law shaped — sometimes single-handedly — a multitude of areas that serve as stock-and-trade of environmental, energy, and natural resources lawyering across the nation. This article focuses on standing, takings, and deference to environmental agency rulemaking.

Digital resources on the commons

"General map which shows the status of the mother river Queiles from the Kingdom of Aragon until it enters the terms of Tudela, the dams, main ditches, Bracers highest grade, which includes the villages with their jurisdictions and roads", drawn March 15, 1792 by Fernando Martínez Corcín. Source: Archivo general de Navarra, Cartografia, signature 146.
(from the ICA page on the Albalá de Tudela)

Rechtsgeschiedenis Blog recently covered digital resources on commons institutions, highlighting the website of Institutions for Collective Action, the Digital Resources on the Commons page of the International Association for the Study of the Commons, and Indiana University's Digital Library of the Commons. There's a tremendous amount of historical material, both primary and secondary, available through these sites.

Like Otto at RB, I'm particularly interested in the water institutions. Institutions for Collective Actions's portal has case studies for 5 Dutch and 3 Spanish waterboards, with a tremendous amount of information on the historic legal institutions governing the management of water in these areas. For instance, here's an excerpt from a description of how the waters of the River Queiles around Tudela, in Navarre (in the north of today's Spain) were governed under a series of ordinances going back to 1220 (a hundred years after the city's Muslim rulers were ejected, but obviously showing the continued influence of their rule):

The ownership of the water of the river Queiles was divided into monthly shifts between the communities that were entitled to irrigation. The first description of this system is to be found in the ordinances of Tudela of 1220. Each month was divided into three periods of different lengths: the almoceda, the alhema. and the entremés. The almoceda began at sunrise on the 22nd of each month and ended on the 26th, lasting four days and nights. The alhema began at sunrise on the 26th and was of variable duration, depending on the location and the time of year: on the right bank, it lasted five days in ten of the twelve months of the year and four days in April and May. From 1376 onwards, on the left bank the alhema lasted for eight days and nights, except in April and May, when its duration was reduced to seven days. The remainder, between the end of the alhema and the start of the almoceda was called entremés.

ELI interviews of environmental law pioneers

The Environmental Law Institute (where years ago I spent a great summer internship as a law student) recently uploaded interviews with 24 people involved in creating the legal framework for modern environmental law in the US, along with short biographies of the interviewees. Scott Fulton, ELI's President, explains:

Nearly 50 years ago, thousands of Americans rallied in the spring of 1970 to celebrate the first Earth Day, an event that marked the beginning of the modern environmental movement. As we approach the 50-year milestone, the Environmental Law Institute has interviewed and recorded the stories of 24 of the men and women who inspired, created, and implemented U.S. framework laws to protect public health and the environment. We asked them why they chose to work on environmental problems and what caused the rise in public concern and support for new environmental laws in the early days. We learned how sweeping new laws like the Clean Air Act and the Clean Water Act came to be created and carried out by able leaders from both political parties, what innovations in those laws made environmental law work well, and where they fell short of expectations.

[Sorry I've been lax in blogging lately. As always, I'm happy for others to pitch in with posts!]

More Polanyi, and international environmental law

Karl Polanyi seems to be making a comeback on the pages of the Journal of Environmental Law. Alongside Ben Pontin's review essay discussed here yesterday is Jeffrey McGee and Jens Steffek's "The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law". They write:

Since its inception in 1992, the United Nations (UN) climate regime has made a key ontological distinction between ‘developed’ and ‘developing’ countries....

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However, the outcome of the UNFCCC COP 15 meeting, the ‘Copenhagen Accord’, radically changed the nature of the promises made by countries about reducing greenhouse gas emissions. Instead of requiring developed countries to adopt more ambitious and legally binding emission reduction targets, the Copenhagen Accord invited all countries to simply make non-binding pledges for the period 2013–20. Binding targets and timetables for emission reduction, for developed or (the more advanced) developing countries, had fallen off the negotiating table. The Copenhagen Accord thus provided a radically different architecture for the future of global climate governance than that established under the Kyoto Protocol. This was reaffirmed at the 2012 UNFCCC COP17 meeting in Durban when the formulation of a future global climate change regime ‘applicable to all Parties’ became diplomatic shorthand for a ‘political expectation that the climate regime must contain greater symmetry in the commitments’ between developed and developing countries. 

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The historical and theoretically grounded analysis of the Copenhagen turn provided here necessarily operates at the intersection between legal doctrinal analysis and the interdisciplinary perspective provided by historical economic sociology. Our methodological claim is that in order to understand the outcome of the Copenhagen COP 15 meeting it is necessary to embed the doctrinal understanding of emission reduction commitments in the UNFCCC within the wider context of the ongoing history of distributive conflicts between developed and developing countries in the post-World War II period. It is only through the lens of these distributive conflicts between developed and developing countries, which are best viewed from the perspective of historical economic sociology, that the pattern of prescriptive formal differentiation of commitments on emission reduction before Copenhagen, and the subsequent breakdown in this pattern at Copenhagen, can be fully understood.

The starting point of our analysis is Karl Polanyi’s 1944 classic in historical economic sociology, The Great Transformation. Polanyi’s key insight was identifying a dialectical ‘double movement’ in the historical evolution of Western societies which centred on an alternation of efforts to disembed markets from society and re-embed markets into society. In other words, Polanyi identified in Western society phases of economic liberalisation and market-making (which disembed markets from society) contrasting with periods of political interventionism (to re-embed markets within society). Drawing on Polanyi’s work, John Ruggie identified a historical post-war compromise between global market-making and political interventionism which he coined ‘embedded liberalism’. This term describes a design for global governance that was based, on the one hand, on an international division of labour and the notion of the comparative advantage that was encouraging the making of global markets and trade liberalisation. On the other hand, embedded liberalism also allowed states sufficient discretion in domestic policymaking to cushion their economies and citizens from the more adverse effects of international liberalisation.

However, the historical compromise of embedded liberalism was unsatisfactory for developing countries. During the 1960–70s developing countries, therefore, called for an alternative design for the institutions of global governance, described by Steffek as ‘redistributive multilateralism’ (RM), in which international market activity was embedded within international society by differentiation of obligations and international transfers of wealth from developed to developing countries. The United Nations Conference on Trade and Development (UNCTAD) was the first global institution to exhibit a RM design. The differentiation of obligations between developed and developing countries in the UN climate regime might also be viewed as an important instance of RM. However, we claim differentiation of obligations in the UN climate regime is in significant conflict with the neoliberal principles that have come to dominate international governance in recent decades and that largely supplanted post-war ‘embedded liberalism’ in the West. We, therefore, contend that focussing on this historical tension between neoliberal and redistributive designs of institutions offers a new and important perspective on the shift in global climate governance that occurred in 2009 at Copenhagen.

The Copenhagen COP 

The environment and the Great Transformation

                  (from famouseconomists.net)

The latest Journal of Environmental Law has an interesting review article by Ben Pontin on two books: Michelle Maloney and Peter Burdon, Wild Law—In Practice (Routledge, 2014); and Bettina Lange, Fiona Haines and Dania Thomas (eds), Regulatory Transformations: Rethinking Economy–Society Interactions (Hart Publishing, 2015). Pontin writes:

This review article compares ‘Wild Law’ and Polanyian critiques of modern day environmental regulation, drawing on two recent edited collections. Each critique unfolds within a rather different intellectual tradition, but there are nonetheless important areas of common ground that justify reading the two together. One area of common ground is a concern with the regulation of social and economic impacts on the natural environment in the context of what it means to be ‘human’. Polanyi did not in his lifetime receive the credit he deserved for being among the very first to write explicitly about regulation in relation to ‘human beings and their natural environment’. This was decades before the word ‘environment’ entered into the lexicon of policy and law in the USA (National Environmental Policy Act 1969) and the UK (Environmental Protection Act 1990). To this extent the catchy neologisms of Wild Law (‘Earth Jurisprudence’, ‘Earth Community’, ‘Earth Governance’, ‘Earth Justice’ and of course ‘Wild Law’ itself), are building on a Polanyian heritage.

A second key area of common ground concerns the limitations of markets as a means of structuring economic and social relations. While neither standpoint rejects markets as means of conducting economic transactions up to a point, each is predisposed towards modes of regulation that are embedded (using Polanyi’s language) in ethical values, rather than the profit motive. Polanyi arrived at this market-critical position from a historical perspective, but as one contributor to the collection by Lange and others points out, Polanyi was preaching to the converted in criticism of 19th-century ideology in the 1930s and 1940s. The difference with Wild Law and modern exponents of Polanyian ideas is that they are facing a renaissance of classical political economy (so-called ‘neo-liberalism’), which is evidenced by an approach to environment regulation based on creating new markets in environmental ‘goods’. This is illustrated in areas such as nature conservation and climate change (eg tradeable biodiversity and carbon credits, respectively), and more broadly by the treatment of economic growth as a bottom line within environmental policy. Much hinges, therefore, on the guile with which these two critiques are articulated (including the scope for learning from one another where possible).

Introducing Polanyi to a legal audience that is largely unfamiliar with his work is a primary aim of the collection of Lange and others, and it is done well. By way of the briefest of distillations, Polanyi’s leading work is The Great Transformation (first published in 1944). In it he tells the story of colossal policy failure, when—in 19th-century Britain—the legislature and courts were persuaded to put into practice Adam Smith’s theory of meeting a nation’s needs through the invisible hand of the free market. That entailed the repeal of protectionist legislation (notably corn laws), and the introduction of economically liberal reforms to statute and common law relating to labour and care for the poor and vulnerable. Polanyi’s achievement was to have grounded a theory of regulation in the experience of this laissez faire experiment:

"Before the process [or planned marketisation] had advanced very far, the labouring people had been crowded together in new places of desolation, the so-called industrial towns of England; the country folk had been de-humanized into slum dwellers; the family was on the road to perdition; and large parts of the country were rapidly disappearing under the slag and scrap heaps vomited forth from the ‘satanic mills.’ Writers of all views and parties, conservatives and liberals, capitalists and socialists invariably referred to social conditions under the Industrial Revolution as a veritable abyss of human degradation."

Polanyi argued that this refuted Smith’s account of human beings as natural traders, with an instinct to bargain their way through life in search of personal material improvement. The universality of condemnation (‘writers of all views and parties’) suggested to Polanyi a naturally spontaneous resistance to free trade. Christopher Decker coins a distinction between Smith’s and Polanyi’s understanding of the human being in terms, respectively, of ‘economic man’ and ‘whole of man’. This makes for an interesting framework for exploring the differences between the Polanyian and the Wild Law critiques of markets (Wild Law looks to more than the ‘whole man’).

Polanyi uses the concept of a ‘double-movement’ to capture the transformation of society during the industrial revolution, and this is among the frames of reference of Lange and others’ collection. Economic relations, Polanyi argued, are naturally embedded in social ones, such that their ‘dis-embedding’ (as a consequence of the experiment with the theories of Smith and the wider Manchester School) elicited a ‘counter movement’, in which the economic sphere was re-embedded in the social sphere by means of regulation.

There's plenty more interesting discussion here.

Indian water rights

Continuing coverage of the special issue of Western Legal History on Southern California water: Tanis Thorne's contribution is "Indian Water Rights in Southern California in the Progressive Era: A Case Study." Thorne writes:

The consensual opinion of water rights historians is that piecemeal legal transfer of Indian water rights to the non-Indian majority progressed unabated, decade after decade, throughout the arid American West. The water rights of Southern California Native people remained ill defined well into the twentieth century....

This study departs from the consensus position, which has argued that Indian water rights were ignored until the 1960s. In the case of the Capitan Grande Indian people of San Diego County in the early twentieth century, Indian rights were hardly ignored; they were, in fact, a subject of considerable importance to the federal government. In 1919, the El Capitan Act gave the city of San Diego the right to build the El Capitan Dam and create the El Capitan Reservoir as a city storage site. The transfer of Indian land, held under federal trust, required complicated local, state, and federal negotiations both in the 1910s and in 1932, when the El Capitan Act was amended. The Department of the Interior made a concerted effort to define and protect the Capitan Grande people's riparian rights using the state prior appropriation doctrine. The terms of transfer negotiated in 1919 anticipated  the quantification measures based on "practicably irrigable" acreage set in Arizona v. California.

CFP: Ecological restoration and the law

The Griffith Law Review has put out a call for papers for what promises to be an interesting special issue on "Ecological Restoration and the Law: Recovering Nature’s Past for the Future". Some highlights from the call:

This special issue provides a timely opportunity to critically investigate one of the gravest temporal, philosophical and methodological deficiencies inherent in how environmental law develops – namely its neglect or structural deficiencies in actively engaging with the recovery of ecosystems. Under the aegis of the philosophy of sustainable development, which provides environmental law’s main temporal and ideological ballast, our environmental regulations and policies have become obsessed with the future and emotionally and ideologically disconnect people from actively engaging with the recovery of ecosystems. The legal priority is commonly to avert, mitigate or adapt to new ecological impacts rather than to restore past damage. While further environmental upheaval must be avoided, sustaining what remains may be illusionary if prevailing conditions are too degraded. A focus on sustainability emotionally and mentally disconnects us from actively restoring nature by presuming that nature has the capacity to passively restore itself. To the extent that legal systems recognise the imperative to actively restore nature, they tend to focus narrowly on environmental restoration rather than ecological restoration (ie, the difference between rehabilitation of small, discrete sites, such as a former mine, and ambitious restoration of entire ecosystems and landscapes).

The special issue of the GLR thus serves to critically evaluate the nature and impact of current laws and other governance mechanisms that address ecological restoration, to advance theoretical understandings for a new generation of governance reforms for eco-restoration, and more broadly to generate critical and interdisciplinary insights into environmental law generally. Ecophilosophy and philosophy more generally, through strands such as the ‘new materialists’ have helped us to think differently about the idea of nature and ask ontologically informed questions about human beings in a world of matter. Environmental history, geography, ecopsychology, anthropology and other disciplinary approaches to the human relationship to nature have supported discussions and research that question our understanding of how we come to view and interpret our relationship to the natural world and its significance for us. Environmental law however has not kept pace with the widening of our increasingly more interdisciplinary and critical approaches to how we understand the human and nature relationship.

In this respect, the special issue considers how law and its relationship to themes like recovery, emotions, time, geography, vitalism, vulnerability, justice, and history can provoke how we think more deeply about restoration. Some of the interrelated themes include: 

Some historical background on the Flint crisis

Yesterday's This Day in Water History provides some legal-historical background to the Flint water crisis (for more, see here and here). An excerpt:

Where did the LSLs in Flint come from and why were they installed? I found an 1897 City of Flint Ordinance that required the use of lead pipe to connect water mains to homes. I have found dozens and there must be hundreds of ordinances for other cities like this in the literature. Lead was the preferred material because other materials such as iron and steel pipes corroded away. Ironically, lead was considered a more durable material for service lines. Copper and plastic pipes were not commercially available until much later.

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What about LSLs? Should they be replaced? Yes. NOW. A big mistake was made in 1991 with the adoption of the Lead and Copper Rule that did not require the replacement of all LSLs in the U.S. Also, the allowance of partial replacement of LSLs made lead exposure of the public far worse. Everyone involved in drinking water and public health should demand that the federal Lead and Copper Rule Long-Term Revisions include an accelerated schedule for replacing LSLs. Also, we should not get confused about who foots the bill. Society made the decision in the 19th and 20th centuries to use lead pipe. The homeowners and utility personnel who installed lead pipes are long dead. The total cost for LSL replacement should be paid for by utilities (with cost recovery from increased water rates) with some help from state and federal governments to seed the process and get it done. Society caused the problem and it is up to all of us to fix it. There are 6.1 million LSLs in this country and they need to be ripped out and completely replaced without delay.