Origins of emissions trading

I don't know why Daniel Cole's "Origins of Emissions Trading in Theory and Early Practice" has gotten so few downloads--maybe it's the one-line abstract. So here are some highlights from the article:

In 1968, the late Canadian economic historian John Dales elaborated the theory of cap-and-trade in his prescient book, Pollution, Property, and Prices [University of Toronto Press, 1968]. [note: Dales was not the first economist to recommend tradable permitting. Two years earlier, Thomas D. Crocker of the University of Wisconsin – Milwaukee suggested the idea. Dales, however, was the first to actually describe how such an approach might be structured.] Dales envisioned a ‘market’ in ‘pollution rights’ created by the government. First, the government would impose a quota limit on allowable emissions, as it regularly does in ordinary regulation. This quota limit, often referred to as a ‘cap,’ must be set administratively in order to render available emissions units scarce; otherwise, no market for them would develop. With the cap in place, the government would then issue pollution rights (usually referred to as ‘allowances’ or ‘credits’) equal in number to the cap. Each pollution right would be equal to one unit (usually, a ton) of pollution.

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In practice, emissions trading evolved, almost entirely, in the context of air pollution control under the 1970 Clean Air Act and its amendments. That statute did not make any provision for the kind of transferable pollution rights system Dales envisioned. As early as 1974, however, the Environmental Protection Agency was experimenting with transferable pollution rights programs. By 1980 the agency had approved four distinct emissions trading schemes 

Whales, Bees and Other Valuable Finds

If the hot weather is getting to you, maybe some Scandinavian law will cool you off. Comparative Legal History recently published "Finding, sharing and risk of loss: of whales, bees and other valuable finds in Iceland, Denmark and Norway", by William Ian Miller & Helle Vogt. The abstract:

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of insurance-like institutions arose, aggressively, to encourage risk spreading and overall risk lowering by sharing. The Icelandic laws, especially, show a rather remarkable sophistication regarding risk sharing. They were very alert to the kinds of strategies of avoidance people might employ to evade the rules.

Bees in Norway

Property and the Appalachian Trail

Maybe some of you are out hiking right now. When you get back you may want to read Sarah Mittlefehldt's Tangled Roots: The Appalachian Trail and American Environmental Politics (U Washington Press, 2014), reviewed in January's Environmental History by Margaret Brown. Brown writes:

The Appalachian Trail (AT) is a remarkable story of volunteerism because in the early years no government agencies were involved in its creation and maintenance. Local hiking clubs sought permission of landowners to develop the trail and negotiated the rough terrain of property rights. “The AT maintainer had to be one-third trail worker, one-third organizer of other trail workers, but one-third diplomat among the landowners” (p. 38). Not until 1945 was a bill proposed to incorporate the AT under federal authority, and it took the 1968 National Trails Act to create the concept of a distinct corridor of protected landscape under the care of state agencies, the US Forest Service, and the National Park Service. According to Mittlefehldt, the 1968 law did not simplify the story of the AT; rather, it polarized landowners because the protected corridor required additional takings at the same time that the Sagebrush Rebellion and the property rights movement were gathering momentum. The conflict between environmentalism and property rights resulted in the unique contemporary position of the trail: the entire management of the AT was given in 1984 to a nongovernmental nonprofit—the Appalachian Trail Conservancy (ATC)—with both a professional staff and a prodigious number of volunteers.

The North Pacific Fur Seal Convention

Pelagic Fur-Seal Hunting off Akootan Pass, Bering Sea, (Harper's Weekly April 1892)

For those of is facing hot summer temperatures this July, thoughts of cooler climes: January's Environmental History published Robert Irwin's "Canada, Aboriginal Sealing, and the North Pacific Fur Seal Convention". The abstract:

The National Oceanic and Atmospheric Administration has described the 1911 North Pacific Fur Seal Convention as one of the ten most important events in environmental history. Article IV of this Convention provided First Nation sealers with harvest rights provided they conducted the hunt as practiced previously, without the use of firearms and not under contract to a commercial interest. While historians have studied the diplomatic and environmental aspects of the Convention, little attention has been paid to this Aboriginal harvest privilege. Its inclusion in the fur seal treaty inadvertently contributes to the modern “ecological Indian” construction and foreshadows the current environmental crisis faced by many First Nation communities: their harvest is acceptable provided it is considered primitive or traditional and noncommercial.

Magna Carta and the environment

King John hunting, from Statutes of England (14th century)

Much has been written recently on Magna Carta, now celebrating its 800th anniversary. Jill Lepore's piece at the New Yorker is good; the best is still Tony Hancock's 1959 take.

I was fortunate to attend the recent British Legal History Conference at the University of Reading, as part of which we made an excursion to the meadow at Runnymede where King John signed Magna Carta. The first environmental element in this story is a monument that was never erected at Runnymede, planned to honor William III. Apparently the reason it was not built was that the soft ground of the meadow would not have been able to support it.

William Thomas, Design for a column with a statue of William III
intended to be erected at Runnymede (British Library)

Given the design, we should be thankful for that environmental constraint, but, as usual, the environment didn't get in the way of good ole American ingenuity. Runnymede is now a silly place, with a lot of memorials set up by Americans; the central one, erected by the American Bar Association, looks like a World War II memorial:

American donors also got some very classy plaques:

And the main British contribution to the site just might be a joke:

But enough about Runnymede. Magna Carta itself (here's an accessible English translation) has very little on liberty or what we would think of today as major constitutional issues, and a lot of esoteric clauses ranging from the colorful to the weird to the upsetting. And quite a bit on environmental-legal issues. Take clause 33: "All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." As Nicholas Vincent explains at the British Library's website, what's at issue here is the free navigation, or the public trust as we might call it today.

Rechtstaat and Recht in the German nuclear power debate

The latest Law and History Review has an article by Michael Hughes, "Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983".  The article begins:

Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.

Hans Weingartz,
Anti-AKW-Demonstration auf dem Bonner Hofgarten am 14. Oktober 1979

Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the 1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.

Oysters, raisins, and water

Not a recipe for stew, but some of the elements of a US Supreme Court decision issued yesterday. Last month we noted John Eccheverria's discussion of the then-pending Horne v. Dept. of Agriculture, a case in which the court was asked to decide whether a government regulation requiring raisin growers to hand over some of their raisins to the government was a "taking" of property requiring compensation. The case seemed to bear a striking resemblance to a 1929 case, Leonard & Leonard v. Earle, in which the Supreme Court had ruled that a Maryland law requiring oyster packers to turn over shells to the state was not a taking. Echeverria noted that counsel for petitioners in Horne argued that the early case should be distinguished on the grounds that oysters, unlike raisins, were wild animals, and therefore the property of the state to begin with. This seemed to be a weak legal argument, running against Supreme Court decisions that called public ownership of wildlife "a mere fiction".

Piles of oysters in 1884 (Oysters for the Bay.Com)

It turns out that yesterday's decision bought the argument, a development with potentially far-reaching consequences for the ability of the government to protect nature without running afoul of the takings clause. Echevveria explains in a post yesterday:

Hunting and conservation

Irus Braverman recently posted "Conservation and Hunting: Till Death Do They Part? A Legal Ethnography of Deer Management". The abstract:

Claims that hunters are exemplar conservationists would likely come as a surprise to many. Hunters, after all, kill animals. Isn’t there a better way to appreciate wildlife than to kill and consume it? Yet there is no mistake: wildlife managers frequently make the claim that hunters, in the United States at least, are in fact some of the greatest conservationists. This article explores the complex historical and contemporary entanglements between hunting and wildlife conservation in the United States from a regulatory perspective. Such entanglements are multifaceted: hunting provides substantial financial support for conservation and hunters are the state’s primary tools for managing “big game” populations. Additionally, many wildlife officials are themselves hunters, and wildlife management programs are often geared toward the interests of hunters. Statutes, regulations, and governmental policies have been set in place that both reflect and reinforce this intimate relationship. This article draws on seven in-depth, semi-structured interviews, mainly with government wildlife managers, as well as on my own participatory observations accompanying a wildlife manager on a hunting trip, to trace the interconnections between hunting and conservation and the detailed regulatory regimes that have emerged around them. The management of the white-tailed deer in New York State will serve as a case study for these explorations of how American wildlife officials think about, and practice, their work of governing wildlife hunting.

Indian fishing rights

Thanks to the History Carnival hosted this month at NiCHE, we learned of Stephanie Milne-Lane's recently posted "Go Fish", an interesting look at the history of Indian fishing rights in the American Northwest. This is obviously a fruitful topic (see, e.g., here and here). From the post:

Looking at an image of (renowned Washington governor) Isaac Stevens, two things come to mind. First, he has a striking resemblance to Brad Pitt. Second, he looks like a man that gets what he wants, come hell or high water. As the first Territorial Governor of Washington and the Superintendent of Indian Affairs, Stevens did get what he (and by extension President Franklin Pierce) wanted. Charged with securing the land and cooperation of local tribes, Stevens negotiated a series of treaties, procuring the legal rights to 64 million acres of land in less than a year. Exuding the nineteenth century belief that land not dedicated to traditional farming was going to waste, Stevens’ treaties carried the underlying belief that Native Americans needed to assimilate into general—white—American culture by living and farming on designated reservations. However, Stevens also included a safety net of sorts in his treaties. Native Americans negotiated one key phrase in all of the treaties: “right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” In Stevens’ eyes, the phrasing eliminated the U.S. government’s obligation to supply food to the tribes during the transitional period from their traditional way of life to their lifestyle on reservations.[see Gabriel Chrisman, "The Fish-in Protests at Franks Landing"] His work complete, Stevens left the rain of the Pacific Northwest in 1857. However, his treaties and their phrasing would have long-standing implications. 

Isaac Stevens after his promotion to Brigadier General in 1861.

Committed to the yeoman farming ideal, many early American settlers concerned themselves with farming, logging, and mining, while Native Americans continued to fish at their usual and accustomed areas. However, by the turn of the 20th century the bountiful salmon and trout of the Evergreen State brought the issue of native fishing rights to the forefront. A tug-of-war between native fishing rights and entrepreneurial commercial fishing endeavors further strained already tense relationships, illuminating the muddied intentions of the state of Washington and prompting legal action.

More at SHRA's website.

Economics of Legal History

Daniel Klerman recently published an edited collection, Economics of Legal History (Elgar, 2015), which includes influential pieces on the history of natural resources law, including Harold Demsetz's "Toward a Theory of Property Rights", Robert Ellickson's "A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry".

The publisher's description:

Generations of law and economics scholars have been fascinated by history, seeing in its institutions and laws a vast database for illustrating their theories. Equally, historians have seen economic analysis as a helpful tool with which to analyze legal institutions. As a result a vibrant field has emerged in which people trained in law, economics, history and political science have all made significant contributions. This volume brings together the most important works examining legal history from an economic perspective. An original introduction by the editor provides a useful roadmap to the field.