Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:

By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?

*****

By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.

Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation

After discussing a number US Supreme Court decisions, Power goes on:

Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.

But things changed under the Rehnquist and Roberts courts:

During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular. 

Standard Oil and environmental law

The October 2014 issue of Environmental History has a lot of law in it. We'll start with Jonathan Wlasiuk's "A Company Town on Common Waters: Standard Oil in the Calumet". Wlasiuk writes:

Although the twentieth-century American environmental movement was punctuated by the voices of critics within the modernist state, from Aldo Leopold to Ed Abbey, the predominant narrative focuses on calls for federal management of ecosystems that had been controlled by corporations and local governments since the advent of the industrial era. Environmental historians have engaged the debate over whether private or public forces bear responsibility for environmental decline by examining what Christine Meisner Rosen calls “industrial ecology” in search of the business roots of environmental degradation or, less often, rehabilitation. The federal regulatory framework of the EPA and the raft of antipollution legislation that emerged in the 1960s and 1970s was the culmination, not the beginning, of both federal investigations of public health concerns related to industry dating back to the New Deal era and the failure of a cluster of state oversight, local control, and free market solutions. Betsy Mendelsohn has argued that these regulatory precursors are important because they “established the legal setting for the modern environmental law movement that culminated in NEPA in 1969.” A significant chapter in this transition occurred on the Great Lakes in the twentieth century. The industrial ecology of Lake Michigan reveals the failure of market solutions and local control over the environment: corporations found little incentive to protect the quality of common waters and Lake Michigan collected the ecological consequences from polities severed by state boundaries.

This article examines the growth of federal regulatory power by analyzing a turning point in the ecology of the Calumet region on the Illinois-Indiana border and Lake Michigan. In 1889 Standard Oil transferred the heart of its domestic manufacturing empire from Cleveland, Ohio, to Whiting, Indiana, where it constructed the largest oil refinery in the world. Along the lakeshore of northwest Indiana, Standard Oil began an experiment to reorganize its petroleum empire on the principles of scientific management. For nearly eighty years, the company lived the libertarian dream of freedom from government regulation and extended the logic of scientific efficiency to the control of labor and the environment. In private interviews Rockefeller revealed the guiding ethos of his empire: “I shall hail the day when our watchword shall be efficiency, as applied to labor, to people in all positions.” As industry flocked to the Calumet region and reached a critical mass in the early twentieth century, the consequences of industrial efficiency washed down the Calumet River and into the ecology of Lake Michigan.

Chicago Park District employee Philip Saeli sprays
deodorant on dead alewives at Montrose harbor in July 1967.
Bob Langer, photographer. Courtesy of Sun-Times Media.

When water pollution drifted over state boundaries, a growing awareness of the inability of local and even state governments to control industry developed into calls for wholesale reform by midcentury. As Hugh Gorman has argued, postwar federal government mandates redefined corporate efficiency “from a guiding ethic rooted solely in the efficient use of resources to one that recognizes the need to comply with regulations based on environmental objectives.” The corporate ecology of Standard Oil on Lake Michigan reveals how a commitment to technological control and efficiency produced an environmental collapse that transformed Lake Michigan and threatened the public health of millions of Americans. Although the federal government intervened by the late 1960s, their caution in deferring to local, state, and interstate solutions challenges [James] Scott’s characterization of an aggressive “administrative ordering of nature and society.” In the Calumet region, this description better fits the actions of industrial corporations. 

Among other interesting points, here is Wlasiuk putting a renowned court decision on the public trust in context:

Yakama Indians and environmental-legal battles

A while back Legal History Blog posted on the publication of Barbara Leibhardt Wester's Land Divided by Law: The Yakama Indian Nation as Environmental History, 1840-1933 (Quid Pro Books, 2014). From the publisher:

Wester’s environmental history of Yakama and Euro-American cultural interactions during the 19th and early 20th century explores the role of law in both curtailing and promoting rights to subsistence resources within a market economy. Her study, using original source files, case histories, and contemporary writings, particularly describes how the struggle to assert treaty rights both sprang from and impacted the daily lives of the Yakama people.

The study is now widely available in this new paperback (and digital) edition, adding a 2014 foreword by Harry N. Scheiber, professor of law and history at Berkeley. This book, he writes, “is a masterful study of the complex, extended series of confrontations between the native Indian cultures of the Yakima region and the regime of the conquering white nation. Her analysis is based on a blending of materials from rich archival sources and from the literatures of legal history, administrative history, anthropology, ecology, and cultural theory. Most remarkably, the book makes important new contributions to all these fields of scholarship.”

“In her remarkable book Land Divided by Law, Barbara Leibhardt Wester eloquently portrays the Yakama Indians of the Columbia River Basin as actors defending a threatened, living landscape from encroachments by settlers. Using federal officials and the courts to advocate for their rights, they reasserted a spiritual heritage of the earth as body, heart, life, and breath. Anyone interested in Native peoples and their interactions with Euro-Americans will want to read this lively, engaging account.”

— Carolyn Merchant, Professor of Environmental History, University of California, Berkeley

“This is a remarkable work that brims with insight about the inter-relatedness of nature, work, law, and culture. Wester blends expertise in several different academic disciplines with a superb gift for narrative into her analysis of the Yakama people’s defense of their traditional way of life. The book is a testament not only to the skill and resilience of its subjects but also to the power of the author’s empathy and respect for them.”

— Arthur F. McEvoy, Associate Dean for Research, and Paul E. Treusch Professor of Law, Southwestern Law School

Drinking water regulation

Slate recently published a piece by James Salzman marking the 40th anniversary of the US Safe Drinking Water Act. Salzman writes:

Prior to the understanding of germ theory in the late 19th century and realization of the dangers bacteria posed, cholera and typhoid epidemics were commonplace and little-understood. The practice of chlorination, introduced to America by the water supplier for Jersey City in 1908, eradicated these threats within decades. Ironically, Jersey City actually sued the water company, arguing that the older system of sand filtration was needed to provide the pure and wholesome water required in the supply contract. The judge decided in favor of progress, finding for the company. The New York Times report of the decision was remarkably prescient about the importance of chlorination: “so successful has been this experiment that any municipal water plant, no matter how large, can be made as pure as mountain spring water.” Written a century ago, it almost reads like an ad for bottled water today.

The first standards for drinking water in America were developed by the Public Health Service in 1914, two years after the famed aviation brother Wilbur Wright died of typhoid. The federal standards addressed bacteriological threats, but the PHS’ powers were limited, so the standards applied only to interstate common carriers such as trains, buses, and ships. Water providers to these carriers had to use chlorination, and this soon covered all the major cities.

The PHS standards were neither comprehensive nor revised very often. Rachel Carson’s Silent Spring heightened the country’s consciousness about pesticides and chemicals, and advances in science revealed whole classes of dangerous viruses, but only 28 of these contaminants were covered when Carson’s book was published in 1962. And even where there were federal standards, there was scant implementation. By 1970, the PHS standards directly applied to just 650 out of the nation’s 35,000 public water suppliers. Only 14 states had adopted the standards for themselves. 

CFPs: Occupation and Planning

Two announcements recently posted on H-Environment may be of interest to readers:

From the call for the 3rd Summer Institute at Cornell University (May 11-15, 2015), on the topic, “Occupation: Violence and the Long-term Control of Land and People”:

The theme of the Third Annual Summer Institute at Cornell University is military occupation and its civilian society relatives.

*****

The goal of the Institute is to understand emergent meanings of occupation and recognize its paradigmatic potential for land and resource commandeering in episodes of war and peace. Participants will ponder these questions: How does military occupation insinuate itself into civilian governance after war episodes pass? How do models of military occupation inform (or not) non-military efforts to assert control over people and landscapes? How are subaltern occupations by the occupied similar to or divergent from military occupation? Other likely questions: How is military occupation changing in light of the changing nature of war? Does occupation ever improve conditions in subjugated zones (“transformative occupation”), an assumption informing today’s U.N. Peacekeepers and other humanitarian interveners? How do corporations occupy landscapes (patents, debt obligations, take-overs, accumulation by dispossession, land/sea grabs)? How is occupation different from enclosure, annexation, and colonial dominion? 

The application deadline is January 15. More at H-Environment.

from City of Philadelphia Zoning Maps (1933)
(Greater Philadelphia GeoHistory Network)

Also, the 16th national conference on planning history of the Society for American City and Regional Planning History (SACRPH) will take place in Los Angeles, November 5-8, 2015:

SACRPH cordially invites papers on all aspects of the history of urban, regional, and community planning, worldwide. Particularly welcome are papers or complete sessions addressing:

•    planning and the built environment in the U.S. Sunbelt
•    comparative and global studies of planning, especially of the U.S. West/Pacific Rim, or U.S. Southwest/Latin America
•    preservation planning in 20th-century cities
•    disaster and urban resiliency
•    the ethics of planning
•    planning and the law

Proposals are due February 15. More at the Society website.

In Memoriam: Gordon Bakken

We note the recent passing of historian Gordon Bakken (1943-2014). A leader in the fields of western American history and women's history, Bakken was also active at the intersection of legal and environmental history. Some publications:

• "American Mining Law and the Environment:  The Western Experience," 1 Western Legal History 211-36 (Summer/Fall, 1988)
• "A Law for Water in the West: Irwin v. Phillips (1855)," pp. 314-15;  "The Hydraulic Society of the Colorado River: Arizona v. California (1963)," pp. 320-21 in John W. Johnson, ed. Historic U.S. Court Cases, 1690-1990 (Garland Publishing, 1992)
• “An Inversion Layer in Western Legal History: Air Pollution in Butte, Montana," in Hendirk Hartog and William E. Nelson, eds., Law as Culture and Culture as Law (Madison House Publishers, 2000), pp. 264-91
• "Water Pollution, Law, and the Collapse of Societies,” 17 Western Legal History (Summer/Fall 2004): 211-234
• “Montana, Anaconda, and the Price of Pollution,” 69 The Historian (Spring 2007), 36-48
• The Mining Law of 1872: Past, Politics, and Prospects (University of New Mexico Press, 2008)
• “Mining and Pollution in the West: The Limits of Law Protecting the Environment". 21 Western Legal History (Summer/Fall 2008), pp. 209- 236
•  “Colorado’s Impact on American Mining Law,” 49 Journal of the West (Spring 2010): 61-67

250th post - some favorites

Today's post is the 250th on Environment, Law, and History!

Thanks to everyone who's written, comment, and encouraged. If you're interested in writing for the blog, or have any news or ideas that you think should be featured, please write me (dschorr[at]tau.ac.il).

Over the last year and a half we've covered a lot of interesting topics. Here are some of my favorite posts:

• A pair on the place of law in environmental history writing and bringing the environment into legal history;
• Another pair on the disconnect between environmental history and legal history: "Constitution and environment in the graveyard of history" and "Pigs, positivism, and the distance between sub-disciplines";
• A great series by Adam Wolkoff on teaching the history of environmental and law;
• Some brilliant and ever-relevant quotes from EP Thompson's Whigs and Hunters;
• "The hidden histories of environmental law";
• A post on TVA v Hill and conservative anti-environmentalism;
• Dickens and Kafka along with E.B. White;
• Posts with great pictures - ones by Dr. Seuss and Elihu Vedder are two of my favorites:

Lynton Caldwell and NEPA

H-Net recently posted a review by Laura Gifford of Wendy Read Wertz's Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Indiana UP, 2014). Gifford writes:

As author Wendy Read Wertz rightly asserts, political scientist and environmental activist Lynton Keith Caldwell’s remarkable contributions to the development of the modern environmental movement have gone largely unrecognized—and this constitutes a grave omission. Based at Indiana University for most of his career, Caldwell, whose wide-ranging work over a long career in public administration, environmental studies, and environmental policy advocacy produced a bibliography of work some fifty-four pages in length (p. 398), has been referred to by many as the father of interdisciplinary environmental studies. Long before most, Caldwell understood that to craft effective environmental policy, policymakers must be trained to understand and appreciate the ecological world surrounding them. Public administration skills must be joined with scientific and even philosophical understanding of the planet as an integrated whole. Caldwell’s expertise in both public administration and environmental policy brought him into a position of international influence, and he traveled widely both to conduct training and to advocate for his systematic ecological vision. Domestically, his achievements include the creation of an interdisciplinary school of environmental studies at Indiana University and, perhaps most notable, a leading role in drafting the National Environmental Policy Act (NEPA) of 1969.

*****

Wertz has given a signal service in providing the field with a resource through which we can learn about this remarkable scholar. Her coverage of the NEPA, often regarded as the “Magna Carta” of U.S. environmental policy, is deeply insightful—though..., depending on the audience, further editing could have been useful. The field of environmental policy is richer for this addition. Serious scholars of NEPA, Caldwell, or environmental studies will find this volume a wonderful resource. More casual readers should bear in mind that some skimming may be required. 

Environmental justice in India

Environmental Justice recently published Ravi Rajan's "A History of Environmental Justice in India". The abstract:

Indian environmentalism has, for the most part, been about social justice. During the 1970s and 1980s, it was concerned with differential access to natural assets and ecosystem services. The Bhopal Gas Disaster of 1984 raised new issues, pertaining to industrial risk and safety. This article traces the history of environmental justice from the 1970s onward. It describes the perspective of Indira Gandhi, India's Prime Minister from 1967 to 1984, and her attempts at reconciling the environment with development and economic justice; discusses the emergence of a red-green environmentalism during the 1980s and 90s; and explores Bhopal and its implications; before addressing the issues that are front and center today, in the early twenty-first century.

The article has some trenchant quotes from Indira Gandhi's speech, "Man and Environment", at the United Nations Conference on Human Environment at Stockholm in 1972. Here's one:

The extreme forms in which questions of population or environmental pollution are posed, obscure the total view of political, economic and social situations…It is an over-simplification to blame all the world's problems on increasing population. Countries with but a small fraction of the world population consume the bulk of the world's production of minerals, fossil fuels and so on. Thus we see that when it comes to the depletion of natural resources and environmental pollution, the increase of one inhabitant in an affluent country, at his level of living, is equivalent to an increase of many Asian, Africans or Latin Americans at their current material levels of living…All the “isms” of the modern age—even those which in theory disown the private profit principle—assume that man's cardinal interest is acquisition. The profit motive, individual or collectives, seems to overshadow all else. This overriding concern with self and today is the basic cause of the ecological crisis.

Rajan writes:

Indira Gandhi's Stockholm speech was not just a one-off rhetorical flourish in an international forum. It also came to signify the codification of India's approach to development in the second half of the twentieth century. The essence of this approach was that India would strive to harness its natural resources, and invest in modern technology to raise the quality of economic life of the average person. At the same time, efforts would also be made to conserve the environment and preserve its vital forces. Indira Gandhi recognized that there were many shades of gray, and that this grand strategy was easier to talk about rhetorically than implement in practice. For example, she grappled with the consequences of development upon India's tribal peoples and their cultures, only to reconcile the inevitability of development. Again, despite her vehement critique of Western population control advocates, she ended up presiding over an extremely coercive, government-sponsored, forced sterilization program. She lamented the increasing monocultures that resulted with the pursuit of industrial forestry by the government's own forest department but appeared frustrated that her own government did not heed her concerns. In many speeches she repeated the argument in Stockholm that Western industrialism was not a paradigm for countries like India; and articulated the need for balance and alternatives, including, for example, appropriate technology and renewable energy. Yet, she offered no concrete alternatives or pathways for environmental governance.

At the birth of the Clean Water and Clean Air Acts

Jeff Thaler recently posted "At the Birth of the Clean Water and Clean Air Acts" at Environmental Law Prof Blog. From the post:

2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,”  grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted.  Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.”  For that reason, he deliberately included the open-ended phrase “selected air pollution agents.” And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”