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| "New" Jersey City reservoir, c. 1880 |
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.
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| Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT) |
The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control,” and has subjected the tribes to “hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims.”
The purpose of this Article is to examine the legislative history of the McCarran Amendment ― the available Congressional Record, the Senate Report, as well as the Hearing Minutes ― in an effort to ascertain whether it was Congress’s intent to include Indian reserved water rights within the scope of the McCarran Amendment.
The legislative history indicates that “the McCarran Amendment was meant to be interpreted narrowly, not broadly.” It demonstrates that the Senators’ actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing “the years of building the water laws of the Western States . . . [to] be seriously jeopardized.”
Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a “privilege of immunity that the original owner wouldn’t have.” Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law.For more on Indian water rights, see here.
After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas; and taking steps against the increasing threat of water pollution. In this paper the focus is on the way the department, in terms of the Water Act of 1956, responded to the policy of separate development (apartheid), but at the same time took a deeper and long-term view of the development of water infrastructure to be of value for the country and its people, beyond the shorter temporal view of the political leaders of the day. The period 1948–1960 can be seen as the first phase of apartheid (1948–1960). It was notable for the initial emergence of significant opposition amongst the country’s indigenous African people to the white minority government’s apartheid policies, but their struggle was subdued. This phase came to an end at a time when the rest of Africa was engaged in rapid decolonisation and South Africa became politically ostracised in the international arena. What is apparent is that the emergent hydraulic mission of industrialisation promoted unsurpassed development that was destined to have a marked effect on South Africa’s status as a modern state on the African continent.
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| John Marshall |
The case of Johnson v. M'Intosh, 21 US 543 (1823), is taught in many property law classes and is the only information given to new law students about the property rights of Indian nations. However, the case is often misunderstood as denying title to those nations. A close reading of the opinion, in light of three later cases decided in the early 19th century, reveals that the Supreme Court intended to recognize "Indian title" while granting the United States a right of first refusal if tribes sought to sell property on the open market to non-Indians. Far from denying tribal property rights, Justice Marshall's opinion in this case, as explicated by later cases, actually sought to protect tribal title from expropriation by the United States unless the tribes voluntarily consented to the transfer of land.
While it is true that the opinion contains offensive and racist language, assumptions, and arguments, it is important not to ignore the ways in which the opinion sought to criticize, as well as justify, conquest and to put a halt to it in the future. Of course, history did not turn out that way but it did result in our current reality where conquest was incomplete. There are 567 federally-recognized Indian nations in the US and if property law professors teach students that conquest was complete and that tribes have no property rights in their land, those messages have current consequences for tribes trying to exercise sovereignty and property rights today. The truth is that Indian nations have both sovereignty and property rights over their lands and they do not have a mere license or "permission from the whites to occupy" (as the Supreme Court suggested in the 1955 case of Tee-Hit-Ton v. United States).
Both property law professors and scholars of federal Indian law should understand both the offensive racist reasoning in the decision and the ways in which the opinion represents one of the most pro-Indian nation decisions in the history of the Supreme Court. Treating the opinion as simply a racist relic of the past, like the Dred Scott decision, and nothing more, deprives Indian nations of the ability to use the case (and later cases like it) as a bulwark against further non-consensual deprivation of tribal property rights. And such a misreading of the case infects current politics by suggesting that tribes are being unreasonable when they seek to have their property rights be given equal respect to the property rights of non-Indians.
The importance of recognizing that federal law does protect tribal title can be seen easily if one simply considers the Standing Rock Sioux's opposition to a pipeline that threatens their ancient lands—lands that are currently protected both by tribal law, a treaty with the United States, and federal statutes and common law. Understanding Indian title as an estate in land that is every bit as powerful as the fee simple—as equally "sacred" in the words of the Supreme Court—is the message we should be sending to new lawyers, not the opposite.
Whether believers or not, we are agreed today that the earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. For believers, this becomes a question of fidelity to the Creator, since God created the world for everyone. (93)
The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others. (95)
The climate is a common good, belonging to all and meant for all. (23)
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| Youngstown Sheet and Tube Company’s Campbell Works, Youngstown, Ohio (c. 1960) |
Narrating the history of the environmental opposition has grown in importance over the past four decades as the rapid expansion of environmental laws gave way to a conservative antienvironmental movement determined to roll back policies seen as challenging older legal imperatives and in conflict with economic goals. Since the 1980s, first journalists and then historians have focused on the back and forth of environmental policymaking. The basic narrative is of an environmental backlash, which began in the mid-1970s in western states—the Sage Brush Rebellion that formed one of the conservative pillars in Reagan’s coalition. By the 1990s, protests over tightening federal land regulations coalesced ideologically into the wise use movement, which purported to be a modern update of Progressive Era practices (conservationist Gifford Pinchot coined the term “wise use” in 1910). As environmental politics became increasingly partisan, resurgent Republicans in Congress, such as Idaho’s Helen Chenoweth, Tom Delay of Texas, and Alaskan Don Young seized on the principles of wise use and made rolling back environmental regulations key to their “Contract with America.”
The Sage Brush Rebellion narrative provides a compelling shorthand for journalists and historians alike and is doubtless accurate in describing one element of the rise of the environmental opposition. However, the broader narrative of a grassroots backlash prompted by the relative liberalism of the 1970s has recently faced criticism by scholars who point out the ways this framework can mask the purposeful top-down strategies of powerful elites seeking policy wedges to divide the Democratic political coalition. Further, the regional focus of the Sage Brush Rebellion poses the same problems for the story of antienvironmentalism as the overemphasis on the American West that has often characterized scholarship on the environmental movement. While western concerns about federal land ownership sometimes dovetailed with fears among eastern politicians, industrialists, and blue-collar workers about the effects of environmental regulation on jobs, the latter proved at least as decisive in shaping the political landscape as conservationists within the Republican Party were first sidelined and then largely eliminated on the national level. The saga of the spotted owl and old-growth forests in the Pacific Northwest, after all, cannot fully serve as a stand-in for battles over algae blooms in Lake Erie or acid rain in the Ohio Valley and New England. In industrial cities like Gary, Indiana, and Cleveland, Ohio, opponents of environmentalism seized on plant closures as proof positive of their concerns about privileging “clean air and pure water” over “jobs and continued economic progress.”
In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation.
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| John Krutilla |
Environmentalism in the United States historically has been divided into its utilitarian and preservationist impulses, represented by Gifford Pinchot and John Muir, respectively. Pinchot advocated conservation of natural resources to be used for human purposes; Muir advocated protection from humans, for nature’s own sake. In the first half of the twentieth century, natural resource economics was firmly on Pinchot's side of that schism. That position began to change as the postwar environmental movement gained momentum. In particular, John Krutilla, an economist at Resources for the Future, pushed economics to the point where it could embrace Muir’s vision as well as Pinchot’s. Krutilla argued that if humans preferred a preserved state to a developed one, then such preferences were every bit as "economic"—either way, opportunity costs exist and economic choices must be made.
Over the past half century, our country has made enormous strides improving the environment. The laws that were passed to protect the environment and the public policy decisions that were made have yielded substantial progress. The air is demonstrably cleaner, our waterways are getting cleaner, our drinking water is safer, there are lower levels of exposure to toxic chemicals affecting people and wildlife than would have occurred, toxic waste sites are being cleaned up, and millions of acres of the most scenic and valuable parts of our country’s landscape — parks, wilderness areas, and wildlife refuges — are being protected.
None of this has come easily. There have frequently been significant costs. The decision-making process has often been protracted — sometimes by lengthy litigation. Still the progress is undeniable.
This progress is a result of laws that Congress passed and federal, state, tribal, and local agencies implemented. It is a result of investments of government and private sector dollars and the hard work of many communities, companies, and citizens across the land. They have reduced their environmental footprint and improved the way they do business and live their lives. It is the result of technological and policy innovations and the entrepreneurial spirit built into the DNA of the American people. Most of all, it is the result of Americans’ ongoing support for clean air and water, as we recognize that protection of public health and the environment benefits millions of our fellow citizens.
It is essential to understand this history and the lessons and insights learned if we as a country are to tackle some of today’s formidable challenges, such as:
- the adverse impacts of climate change,
- the effects of nonpoint source (runoff) pollution on our waterways,
- issues raised by changing technology, such as biotechnology and nanotechnology, and
- safeguarding the natural resources that are the foundation of our economic and recreational activities.
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....)
