The public trust doctrine in the UK Supreme Court

The Supreme Court of the United Kingdom recently decided a case, R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council, that includes quite a bit of discussion of the public trust doctrine and its history. The doctrine, which, in its basic form, recognizes certain rights of public property in certain waters and beaches, has become a staple of environmental law teaching and scholarship in recent decades, thanks in large part to its revival and adaptation by Joseph Sax.

A bathing machine, of the sort at issue in Blundell v Catterall

While many courts and writers are fond of tracing the doctrine's origins to ancient Roman law and English common law, close followers of the topic will know that the leading English precedent on the topic is the 1821 ruling of the King's Bench in Blundell v Catterall, in which the majority actually ruled against recognition of public rights of access to a private beach (though Justice Best's dissent is probably more often quoted). Now comes the Supreme Court of the UK and examines the history of the doctrine in English law and elsewhere in detail--see, in particular, paragraphs 32-51 and 106-136.

Some of my favorite parts of Lord Carnwath's concurrence:

106. At least since Brinckman v Matley [1904] 2 Ch 313, the decision of the Court of King’s Bench in Blundell v Catterall (1821) 5 B & Ald 268 has been taken as establishing at Court of Appeal level that under English law the public has no general right to go onto the foreshore for the purpose of bathing or other recreation.... Not even the strong dissenting judgment of Best J in the earlier case, the advocacy of a future Lord Chancellor (Buckmaster KC), nor the criticism of three textbook writers cited by him (p 320), were sufficient to persuade the court to revisit the issue, or even to call on opposing counsel. The members of the court were unanimous in their praise for the model judgment of Holroyd J, regarded it seems as “one of the finest examples” of how a judgment should be expressed (p 323)....

107. No doubt because judicial fashions have changed, I confess that I do not find the enthusiasm of the Court of Appeal for the judgment of Holroyd J altogether easy to share. Its erudite analysis of extracts from Justinian, Bracton, and Hale, and of obscure exchanges between the court and counsel in some early English cases, makes rather heavy reading to modern eyes.

Wildlife conservation law in Quebec

H-Environment recently posted Sean Kheraj's review of Darcy Ingram's Wildlife, Conservation, and Conflict in Quebec, 1840-1914 (UBC Press, 2013). Some excerpts:

Wildlife conservation in Quebec was distinct from the rest of Canada not because of the province’s French Canadian heritage, but because of its British colonial heritage. This is the unexpected twist to Darcy Ingram’s insightful study of wildlife conservation advocacy and policy in Quebec...

Ingram locates the origins of wildlife conservation in Quebec among an elite group of British and British American men whose social and political outlooks were informed by conservative, patrician values. These values, Ingram argues, were inherited from British (specifically Scottish) conservation traditions and practices.

*****

In the first part of this book, Ingram examines the patrician outlook that drove the development of a unique system of private hunting and fishing leases that partially emulated aristocratic estates in Scotland. Interestingly, Ingram reveals that Quebec’s elite patricians did not seek to establish an exclusive monopoly over fish and wildlife resources solely for the purposes of sport. Instead, their outlook on wildlife incorporated a desire to improve environmental conditions so as to foster wildlife for a range of uses, including subsistence. They were also relatively sensitive to continued Aboriginal use of wild animals. Conservation under this model would be achieved through the private interests and leadership of Quebec’s anglophone elite. In the 1840s, prominent British and British American elites organized local conservation societies and associations in Montreal and Quebec that then lobbied the colonial legislature to establish leasing privileges to promote the conservation of fish and other wildlife resources. The subsequent leasehold system resulted in a series of private estates held by some of the most politically powerful elites in Quebec, including an exclusive lease reserved for Canada’s governors general. 

Environmental legislation in 1860s Australia

Last summer we posted on articles on water law and pollution law in colonial Victoria. According to Tristan Orgill, "The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria", the law at the time actually dealt with an even wider range of environmental issues. The abstract:

Between 1851 to 1860, an unprecedented ‘gold rush’ wrought a profound transformation upon the fledgling state of Victoria. By 1860, Victoria’s population had increased sevenfold and the colony was attracting ‘worldwide fame’ as one of Britain’s wealthiest settlements. However, this colonial prosperity came at a high environmental cost. Whether by land clearing for agriculture or mining, industrial and urban pollution, or the over exploitation of game, fish and timber - colonial progress often meant, as one colonist observed, that ‘every feature of nature [was] annihilated’. Almost all historians have argued that the environmental degradation of Victoria was an inevitable consequence of the widespread antipathy (or antagonism) of Victorians to what they perceived as a foreign and ugly environment. Whilst some colonists called for restraint, ‘the colonial project - to master, develop, and prosper - overwhelmed the faint cry of such sentiments’. 

ST Gill, Diggings in the Mount Alexander district of Victoria in 1852

This paper will contend that this dominant historical narrative is specious and inconsistent with surviving primary source material. Not only was environmental concern prevalent in Victorian society, popular concern persuaded Parliament to enact considerable environmental legislation throughout the 1860s. Historians have either blithely dismissed or simply ignored the history of this legislation. This is perplexing given that the development of law provides a critical insight into Victorian society’s commitment to - and reasons for - addressing environmental concerns. Thus, this paper examines the three most significant environmental regimes enacted throughout the 1860s: namely, the game, fish and timber statutes.

It will be shown that these regimes were primarily justified by utilitarian conservation arguments and, additionally, that aesthetic and moral considerations were vital. The existence and influence of a ‘proto-preservationist philosophy’, which underpinned the enactment of these statutes, disproves the orthodox historical narrative that colonial society was generally apathetic to environmental degradation and that colonists who voiced concerns were ‘insignificant’.

Ecological & Environmental Politics, Philosophies, and Worldviews: a basic transdisciplinary bibliography

(Bibliography Society of UVA)

Nearly two years ago we noted Patrick O'Donnell's bibliography on ecological and environmental worldviews. He's now posted an updated version, over 20 pages of English-language sources.

The history of procedure and environmental law

As my colleague Issi Rosen-Zvi often reminds us, the issue of lawyer's fees, and procedural rules more generally, have major effects on substantive outcomes. History, it seems, bears him out, as over at Legal Planet Jonathan Zasloff recently posted on the connection between developments in civil procedure and the famous Mono Lake Case:

How was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power?

At one level, the answer is obvious: it found a Sugar Daddy, in this case, the international law firm of Morrison & Foerster, which according to John Hart’s fine book Storm Over Mono, agreed to contribute $250,000 of attorney time to the case — nearly $1 million in today’s money. But this, of course, begs the question of why MoFo agreed to put in that much money. (And of course, the case wound up costing far more).... 

I am still looking into this, but I cannot help but suspect that California Code of Civil Procedure 1021.5 has something to do with it. That provision is familiar to most California lawyers: it allows fee-shifting “in any action which has resulted in the enforcement of an important right affecting the public interest.”

That, at any rate, would explain things: MoFo didn’t take the case pro bono: it took it on contingency, gambling that it would get its attorneys’ fees if it prevailed. It might even get a “multiplier,” i.e. more than its attorneys fees, if the case was especially hard, which it was.... 

And when did 1021.5 come into effect? January 1, 1978, the year after it was enacted (as is standard under state law), and just when the Mono Lake Committee was about to give up. Just in time.

...the case is seen as coming out of the environmental movement of the late 60’s and early 70’s, but if MoFo had been approached even five years earlier, the whole thing might have collapsed.

Morag-Levine on the history of precaution

Noga Morag-Levine, who participated in the roundtable at the recent ASEH conference on what environmental history and legal history can learn from each other, also recently posted her American Journal of Comparative Law review essay on the history of precaution (following on a condensed, blog, version in 2013.) The abstract:

The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books — The Politics of Precaution by David Vogel — and The Reality of Precaution, edited by Jonathan Wiener with several others — have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.

Edwin Chadwick, who brought the Continental
precautionary approach to Victorian England

This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper’s starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state’s autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative law traditions respectively associated with Anglo-American common law and Continental civil law.

Back to blogging

I've been too busy with other things to keep up with the blog recently, but decided that the Passover holiday, the Jewish springtime festival, is a good time to to commit to renewing my efforts. So I'll be trying once again to write on a regular basis.

Springtime flowering in Nachal Hameara, "Valley of the Cave",
where we hiked this week (Oren Peles, from Pikiwiki)

That being said, I'd be grateful for help: If you'd like to write a short post noticing recent scholarship or activities, to write about your own work (research, writing, teaching, or whatever), to critique someone else's, or to muse on recent developments in the intersection of law and the environment that can be illuminated by a historical angle, please let me know.

More on Joseph Sax

At the recent ASEH conference in Washington, DC I attended an interesting panel commemorating Joseph Sax and examining his influence in several fields. The organizers of the panel have created a website with the panel presentations, as well as other resources on this important figure in the history of environmental law.

Also on the same topic, I recently came across Mark Van Putten's "Making Ideas Matter: Remembering Joe Sax", recently published in the Michigan Journal of Environmental and Administrative Law. The abstract:

Joe Sax made his ideas matter. He had consequential ideas that shaped an entire field—in his case, environmental law—both in theory and in practice. His scholarship was first rate and has enduring significance in academia, as evidenced by the fact that two of his law review articles are among the 100 most frequently cited articles of all time. Others are more competent to review the importance of his scholarship; my experience in environmental advocacy is more pertinent to evaluating his impact on environmental policymaking. Here, his ideas have had a greater impact than any other legal academic. As the New York Times observed in the opening sentence of its obituary for Professor Sax, he “helped shape environmental law in the United States and fueled the environmental movement.” As environmental law historian Richard Lazarus put it, Sax “provided much of the strategic blueprint followed by the environmental public interest groups,” which is still followed more than fifty years after he began his career at the University of Colorado Law School in 1962. How did a self-effacing, erudite, bookish professor come to have such an impact?

If you know of other remembrances or other resources having to do with  Prof. Sax, please send them my way, or offer to write something on him for this blog!

Latin America and the US Wilderness Act

Joining pieces by Donald Worster and Libby Robin in Environmental History's roundtable on the US Wilderness Act of 1964 is one by Emily Wakild, "Acts of Courage, Acts of Culture: The Wilderness Act and Latin America". Wakild writes that the history of parks in Latin America defies the social critiques of wilderness that have been advanced in recent years:

In 1940 Mexico had more national parks than any country in the world. Nestled among pine and fir forests, sprawling across volcanoes in the shadow of Mexico City, these parks bore the mark of a particular kind of conservation. Linked to the Mexican Revolution, a vibrant and widespread battle for social justice from 1910 to 1940, the most representative government in the nation’s history created parks as one of many components of a pervasive policy transformation that sought to elevate and empower working Mexicans by providing labor protections, redistributing land, invigorating education, and implementing meaningful political reforms in accord with the Constitution of 1917. While these parks protected natural scenery and had wild components (forests, lakes, glaciers), they were emphatically parks designed for people—places for rural and urban workers to relax or to find new livelihoods in tourism. At their creation, no wilderness whispered in these woods and no wildlife ran in these ecosystems; this was conservation in service of the poor and vulnerable, conservation with social objectives, conservation with people at the center. Today, nearly every remaining swath of greenery gasping for air in the Valley of Mexico is one of these emblems of the revolutionary movement—social justice stitched into the landscape as conservation.

Nahuel Huapi Park, Argentina, the first national park (1903) in South America

*****

Critiques of wilderness have become rote in the past twenty years, perhaps overly so. Consider the history of Mexican national parks in reference to the rise of “new conservation” laid out most emphatically (and hubristically) by Peter Kareiva, Robert Lalasz, and Michele Marvier in 2011. They called for conservation to move beyond parks and protected areas and into programs for rural development and human well-being. They argue that “the modern protection of supposed wilderness often involves resettling large numbers of people” and that “ecologists and conservationists have grossly overstated the fragility of nature.” Both claims play into a classic trope, one that places indigenous and non-Western peoples at the mercy of Northern scientists and overlooks their own agency to build and create rather than to merely react. Not only is there little new about proposals to merge working and natural landscapes—a move Mexicans (and likely others) pioneered in the 1930s—but there is little to show that this will result in improved livelihoods or more vibrant natural spaces. Has conservation alone solved problems of poverty, inequality, and uneven development? No, and that is not what it set out to do. But to assert that conservation has caused these problems, or even has been complicit in them, is to ignore conceptions of conservation and wilderness that do not translate into a US-centered narrative of nature protection. 

There's lots more of interest here.

CFP: Disaster, Environment and Property

Readers may be interested in the recent call for papers (courtesy of H-Environment) for an international conference on "Disaster, Environment and Property: historical approaches, 19th-20th centuries", to be held at EHESS in Paris 2-3 December, 2015. The call explains:

Property systems are essential operators in the anthropization of environments. The transformations they cause or enable often contribute to increasing societies’ exposure to natural hazards. Conversely, historical research shows that some forms of ownership and inheritance law can help to avoid the occurrence of disastrous events, such as avalanches in mountainous areas. Central and local authorities have also long sought to constrain property rights in order to prevent the occurrence of disasters and alleviate their effects, for example by compulsory purchase or the restriction of individual property rights.

Taking a historic perspective focusing on the 19th and 20th centuries, the conference will explore the interactions between property systems, resources and environments, and the particular class of socio-ecological processes that is disasters. The concept here is understood broadly to include “natural”, “industrial”, “demographic” and “ecological” disasters. Property systems are taken as the whole range (individual property, public ownership,  common property and commons, servitudes, intellectual property) with particular stress on the actual practices (technical, legal, scientific, enforcement, etc.) that underpin their existence and combine to make them operate as historical institutions.

Disasters, in their short- and long-term effects, reshape the operating conditions for private and public actors, enabling them to affect the distribution of property and its workings, i.e. its rules of acquisition and transmission and the rights it entails.

A disaster is an occasion for the transformation of property in ways that may have many purposes and motivations: economic, political, ideological. It is also likely, by design or chance, to produce, at a relatively small scale of space and time, an “emergency situation” for property as ordinary rules are relaxed or relief must be provided. Disasters are also a motive for action, often as part of public policy, affecting property rights in order to prevent a catastrophe in advance, or mitigate or repair its effects afterwards. These three aspects (opportunity, emergency, management) interact and overlap to produce a complex set of processes of historical co-construction of property and disasters that the conference will address.

More details at H-Environment.