Red and Green

Over at Religious Left Law, Patrick O'Donnell recently posted a reading list on Red-Green (or ‘Eco-’) Socialism. He adds there:

I think it’s also interesting to examine “conflicts on the ground” as it were between the Left and Green movement parties to the extent the latter finds little or nothing of value in the Marxist tradition (e.g., the early conflicts between the ‘Realos’ and ‘Fundis’ in West Germany and the ‘deep ecologists’ and largely Bookchin-led and inspired ‘social ecologists’ in the US).

Guest Post: A Video Project about Austrian Law and Landscape

David Schorr recently invited me to share a few words about my latest video project with the readers of this blog. The video will be called “Wood, Water, Stone, Sky, Milk: Law and Landscape in Austria.” It will run about ninety minutes once it’s complete, but in the meantime I’ve been releasing short draft segments, one of which was cross-posted here a few weeks back.

The latest segment is called “Alexander and Iris Talk About Stone (without meeting),” and it explores an Austrian legal method beguilingly named after one of the most prominent elements of the Austrian landscape:

Both Alexander and Iris were great sports, and their enthusiasm for video as a medium enabled this segment to address a serious subject with a light touch and to reach viewers well outside university circles. That’s a tone and openness I’d like to achieve throughout the film.

The project grows out seven months I spent as a Fulbright Scholar at the University of Salzburg in 2015, but its roots lie a bit further back. In 2012, I began an extended, unpaid leave of absence from Rutgers-Newark School of Law, where I had taught constitutional law and legal history for ten years. The reasons for the change were personal: my wife is a professor of English at Wesleyan University, and the burdens of my commute from New Haven came to outweigh the benefits of an academic career. We value our lives together.

The decision came with some significant material costs, but it has given me the time and freedom to strike out in new directions, and that’s been ever-inspiring. I had already published three books, and I wanted to jump well outside my comfort zone and explore modes of historical expression that were entirely new to me. I wanted to engage with radically different forms and styles of telling stories about the legal past. As it happened, two of the forms that came to interest me—two new directions I took—were visual.

The first new direction led me into the world of museum exhibitions. Most important, I began collaborating with my friend Mike Widener, Rare Book Librarian at Yale Law School, on an exhibition for the Grolier Club in New York about illustrated law books. Called “Law’s Picture Books,” the exhibition will feature a number of works that are sure to interest readers of this blog, like this eighteenth-century book about Dutch water law, or this great edition of Bartolus. Do come join us when the exhibition opens in February 2018—it’s going to be exciting.

The second new direction led me into the world of video production and editing, which has become one of the most profound humanistic experiences of my life—it forced me to wrestle with basic questions about our knowledge of the world. I’ll find another occasion to reflect on the challenges involved when a university scholar tries to learn digital video from scratch. But I can say here that, to my relief, it struck me immediately that the storytelling foundations of documentary work and my own academic writing were basically the same. And, happily, after a couple of years of trial-and-error learning, I’ve become familiar enough with Adobe’s suite of post-production products—storytelling tools of jaw-dropping power for historians—to create work that’s significantly better than the first film I made on my Flip Video camera. Plus, the great thing about being a beginner again is there’s so much opportunity to learn so much more.

“Wood, Water, Stone, Sky, Milk”—or, when I’m feeling less ambitious, “Stone, Water, and Wood”—began as a very different video project. When I put together my Fulbright proposal, I intended to make a film about the Austrian legal philosopher Hans Kelsen and his pure theory of law. This seemed like a project just quixotic enough to be interesting to me. But after spending a series of afternoons meditating on Kelsen along the banks of the beautiful Salzach river, it became clear that any filmic treatment of Kelsen would after all have to be a film.  That is, it would require exploring his highly abstract thought in a way that would be grounded in—indeed, that would proceed from—worldly, visual metaphors. It also became clear that the project was too narrowly conceived.

Art and the history of environmental law - part VI: Art and hidden environmental law

The last part of a series based on my article on art and history of environmental law. After looking at what art can teach us about environmental law's historical effects, we turn now to how works of art document historical environmental law itself, exposing historical law we might otherwise not know about.

Smoke over Des Moines (right), discussed in Parts IV and V of this series, does more than document the contemporary concern over air pollution that served as the background for the mid-twentieth century’s wave of environmental legislation or the failure of early legislation to solve the problem; it also alerts us to the very existence of air pollution regulation in mid-twentieth-century America, penetrating even to a relatively small Midwestern city. The poster is useful on yet another level, disclosing the legal and institutional form—local ordinances and smoke commissions—that the regulation often took in this period, thereby helping the modern historian bridge the conceptual and semantic gap between today’s legal forms and those of the past.

The WPA poster also opens further avenues of inquiry about environmental law circa 1940. We know from other sources that smoke commissioners and inspectors were appointed under a local Des Moines ordinance. Yet it was the St. Louis Smoke Commissioner, not a local official, who was the featured speaker of the advertised event. Historians have noted that the St. Louis Commissioner, Raymond Tucker, was a particularly effective and influential figure in the American anti-smoke movement, and the 1940 St. Louis ordinance that he pushed through and zealously enforced attracted attention outside the city.  The poster’s recording of Tucker’s visit to Des Moines, probably in early 1941,  might indicate the arteries of legal influence through which environmental norms flowed between jurisdictions during this period, raising questions about whether law traveled as a disembodied printed text or as a companion to flesh-and-blood travelers, and about the possibly limited geographic scope of legal diffusion during this time.

Turning to land use law, Monet’s work is once again suggestive. His 1870 paintings of the beach and boardwalk at Trouville (e.g. The Beach at Trouville, 1870, Wadsworth Atheneum, right, and La Plage à Trouville, 1870, private collection) display an interesting feature—the apparently flush building line and open beach.  Beach setbacks are a hot environmental issue today, but a supposedly recent one, as evidenced by historic building right up to the shoreline in many places. Assuming Monet’s depiction of the beach setback is historically accurate—its repetition in at least two paintings suggests it is—why did the owners of the expensive real estate in the trendy Norman resort not take advantage of the full extent of the beach to increase the built areas of their casinos and hotels? Why did they leave the beach open to the public?

The straight building line indicates a measure of coordination, and the owners’ withstanding of the temptation to “defect” and extend their buildings further out toward the sea suggests a degree of legal coercion. What kind of legal norm operated here is a mystery. Was it a French version of the “public trust doctrine”? A local initiative to preserve the tourist-attracting beach, anchored in local ordinance, contract, or servitude? An early law aimed at beach preservation, or perhaps one that sought to prevent storm damage to built structures? In any case, that Monet’s eye was drawn to this feature seems to attest to both its salience and its aesthetic value in the eyes of contemporaries.

Similarly, while Victorian environmental law may not have brought about clean skies, some paintings hint at other effects. Though mandating minimum chimney heights in order to lift pollution away from populated areas (transferring the fallout somewhere downwind) was apparently a product of the twentieth century, earlier paintings suggest that minimum chimney heights were being established already in the nineteenth. The multiple smokestacks in Caillebotte’s Factories at Argenteuil and Pissarro’s Bords de l’Oise à Pontoise (both in Part III of this series), among others,  appear to be of uniform height, towering above the squat chimneys in earlier paintings, such as De Loutherbourg’s early nineteenth-century depictions of the iron works at Coalbrookdale, Shropshire (below).

Phillipe Jacques de Loutherbourg, Iron Works, Colebrook Dale
(engraving William Pickett), 1805,
Science Museum at Wroughton

The standardization of heights evident in Caillebotte’s and Pissarro’s paintings from the latter part of the century suggests a legal moment behind the smokestacks’ specifications. Whether the elongated stacks were a uniform response to legislation requiring consumption of smoke, to more specific technical requirements imposed by legislation or licensing procedures such as the enquête de commodo et incommodo, or an attempt to head off nuisance suits by adopting industry-wide best practices needs to be investigated, but their artistic rendering at least opens this avenue of historical inquiry.

These examples suggest that while it may be difficult to discern the precise content of environmental law from artistic sources, these sources can at least alert us to the presence, and sometimes the form, of environmental legal norms, in historical contexts in which we might not have suspected their presence. Art can thus be a tool for understanding not only the preconditions and effects of environmental law, but the law itself.

*****

To sum up this series, I would say that art can provide a valuable set of historical sources for understanding the cultural attitudes toward the environment against which environmental law did or did not develop. It can also help evaluate the effects of environmental law, particularly as these were perceived in history. While its utility for uncovering environmental law itself is probably more limited, we have seen that it can at least suggest lines of historical inquiry into the presence of environmental law and the form it took.

If you haven't seen the rest of this series or the original article, please take a look. I would appreciate your thoughts, as well as further research in this field!

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?