The usufructuary ethos

H-Environment recently posted a review by Jay David Miller of Erin Drew's The Usufructuary Ethos: Power, Politics, and Environment in the Long Eighteenth Century (U. Virginia Press, 2021). Some excerpts from the review:

Erin Drew summarizes the core principle of the early modern set of ideas she calls “the usufructory ethos” as follows: “What you have is ‘yours’ only in a partial and temporary sense” (p. 47). Nowhere did this principle manifest itself more clearly than in the figure of the landlord, who commanded power over tenants and by extension the land itself, but who was also, theoretically, bound by responsibilities to both subordinates and superiors. The concept of “usufruct”—which originated in Roman law but was heavily mediated through Christian theology—addressed the paradoxical nature of the landlord’s power by stipulating that the rights associated with ownership were circumscribed by far-reaching and interconnected obligations “that linked not only past, present, and future but [also] humans, nonhumans, and God, as well as the social, political, and natural worlds” (p. 2). Drew argues that recovering the history of the usufructory ethos in late seventeenth- and early eighteenth-century Britain changes the way we understand the human relationship to the environment in this era and could inform how we imagine it today.

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After tracing various iterations of the usufructory ethos through the writings of John Howe, Richard Allestree, Thomas Adams, Matthew Hale, and Thomas Tryon, Drew concludes chapter 1 with the more familiar John Locke. Locke’s significance to the study lies in the fact that the theory of property articulated in his Second Treatise on Government (1690) both relies on the concept of usufruct and undermines it in ways that foreshadow its gradual recession. While the Second Treatise contains usufructory provisos against waste and spoilage, Locke included these mainly as a way of protecting individual property rights, rather than stewarding resources that properly belong to God for the sake of others. Furthermore, Locke’s monetary theory, in which the fruits of labor are abstracted into capital, rendered concerns about waste and spoilage obsolete, as did his assumption that the European “discovery” of America opened up a limitless supply of land. By identifying these features of Locke’s thought, Drew illustrates how the usufructory ethos would come under increasing pressure as commerce and colonization came to define the seventeenth and eighteenth centuries. 

National security and climate change

The National Security Archive project recently posted "National Security and Climate Change: Behind the U.S. Pursuit of Military Exemptions to the Kyoto Protocol", a collection of internal papers and accompanying detailed commentary. Burkely Hermann writes:

Journalists and commentators have argued lobbying by the United States meant that the Kyoto Protocol gave militaries a large exemption from emissions targets and standards. However, the documents tell a different story, of exemptions which were not as wide as the Pentagon or critics of the agreement would have liked. These provisions exempted emissions from international operations authorized by the United Nations or those described as in accordance with the UN Charter, and bunker fuels from being added to national emissions totals.

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On December 11, 1997, the same day the Kyoto Protocol was adopted, the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties released a decision which enshrined the exemptions within the treaty itself. The decision stated that emissions “based upon fuel sold to ships or aircraft engaged in international transport,” i.e., bunker fuels, should not be part of national totals. It was further decided that emissions from multilateral operations following the United Nations Charter would not be included in national emissions totals but would be “reported separately”. 

There's lots more detail, including 27 archival documents and scores of links to other sources. The project's website also has many other documents and essays on other aspects of climate change treaty negotiations.

Confidential State Dept. cable, October 26, 1997

The Antarctic and Outer Space Treaties

Aurora australis, Milky Way, and flags at the South Pole (Martin Wolf, NSF)

Sophia Guido recently posted "How the Antarctic Treaty of 1959 Influenced the Outer Space Treaty of 1967" at In Custodia Legis. An excerpt:

After successfully reaching a consensus on the Antarctic Treaty in 1959, countries were eager to apply these already agreed-upon terms to outer space. The result: many articles in both treaties are very similar to each other. For example, during the Antarctic Treaty discussions, many countries wanted to claim part of the continent as their own based on whose citizens discovered a particular area first, but there were many overlaps of land claimed by multiple nations. So, it was decided that no country could claim sovereignty over any part of Antarctica. By putting this article within the outer space treaty, no country can claim ownership over any celestial body in outer space. As more countries develop the technology to send people or objects into space, this idea is more relevant than ever.

One of the main principles of the Outer Space Treaty is that the exploration and use of outer space and the celestial bodies within it should be carried out for the benefit of all countries, regardless of whether it is for scientific or economic purposes, and only for peaceful purposes. Outer space can be freely explored by all states. However, no country can make any territorial claim to any part of outer space or any celestial body, and every country is responsible for any national space activities carried out by their government or non-government entities and will be liable for any damage caused by their citizens. No country is allowed to place any nuclear weapons or any weapons of mass destruction in any part of outer space.

The New England river commons

H-Environment recently published Zachary Bennett's review of Erik Reardon's Managing the River Commons: Fishing and New England's Rural Economy (U Mass Press, 2021). From the review:

After more than two centuries of damming and polluting their rivers, Americans are reversing course. Dams are coming down and the migrating fish that astonished early European explorers are returning.... Although rivers are coming to resemble their pre-industrial state now more than ever, few serious studies of early American waterways exist. Erik Reardon shows that these struggles to preserve riverine ecosystems are much older than river restoration advocates may have considered...

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The first two chapters establish the importance of river fisheries in indigenous and early colonial communities, arguing that both created sustainable common-use practices to protect fish. Reardon quotes heavily from other secondary sources and his arguments echo the likes of Jeffrey Bolster who have shown that colonists severely depleted fisheries immediately upon their arrival. Reardon effectively demonstrates that colonists both noticed that decline and realized they needed to enact conservation measures at least a full century before industrialization.

Chapter 3 reads as a composite biography of four river fisherman from Maine to Rhode Island who lived at the turn of the nineteenth century.... Their way of life came under considerable threat when commercial fishing practices entered rivers in the nineteenth century that netted the salmon and shad for sale in distant markets and enriched an emerging merchant class. Reardon shows that this class of farmer-fishermen ultimately turned to the state to punish unsustainable fishing practices and preserve rivers as traditional commons space.

Charging for water in Mandate Palestine

The American Journal of Legal History recently published my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine". Due to space constraints of the publisher, I was not able to include in the article some sources that I think are interesting from an environmental-legal perspective. Here are two of them, both penned by engineers serving as head of the water department of the of the Jerusalem Municipality in support of the city's policy of requiring water metering (while most Palestine local authorities also allowed charging flat rates). I think they call to mind current debates about water pricing in various places around the world, explicitly raising issues of efficiency, equity, conservation, and public health:

A. In 1927 Jerusalem's Water Engineer, Andrew (Andor) Koch, was hired by the Tel Aviv Municipality to consult on its system of water supply. In his report to the Tel Aviv Municipal Council (Report on the Tel Aviv Municipal Water Supply, 25th Dec. 1927, Tel Aviv Municipal Archives file 835/04-1029B), Koch explained why he supported metering over flat charges:

I wish to mention that throughout the whole world, now the metered system, as the only correct means for charging Consumers is gaining ground.- There used to be a conception before that water is not a saleable good, but a public property, obtained from nature and therefore the selling of same per volume as any other merchandise, is not justified.- A more close study and moreover the practical results of such an assumption have clearly shown however that earlier or later the free use of water is leading to unnecessary, even expensive (especially concerning the disposal of waste water) waste on the one hand, and inevitably, to the undue exhaustion of the  available sources of supply on the other hand.

Water tower in Tel Aviv, built 1924

The right to rake

Peter Szabó recently published "The Horka Litter Raking Incident: On Foresters and Peasants in Nineteenth-Century Moravia" in Environment and History. The abstract:

Litter raking was a traditional forest use representing an interface between forestry and agriculture. In forest history, it has usually been presented as the harmful removal by peasants of biomass, which was gradually eliminated by foresters, leading to better forest preservation. Based on the example of an exceptionally well-documented case of illegal litter raking in Moravia in 1845, in this paper I argue that juxtaposing foresters and peasants in connection with litter raking masks a much more complicated reality. Neither foresters nor peasants can be interpreted as homogeneous groups because there were significant differences in the opinions and agendas of various representatives within these groups. In addition, opinions were not static on either side but could change in a discursive pattern. In a wider context, the environmental historical analysis of the Horka litter raking incident facilitates the understanding of larger societal processes that influenced past woodland management in Central Europe, and therefore current ecosystems too.

Climate in the American legal academy

A recent post by Dan Farber at Legal Planet discussed the issue of when climate awareness began to enter American law. 

In "The Origins of Climate Awareness in the Legal Academy", Farber writes:

The earliest clear references to climate change that turned up in my search... were in 1978 articles about nuclear energy. The most notable was by an administrative law professor at Harvard, one Stephen Breyer. Now-Justice Breyer argued that it was misleading to consider the environmental impact of nuclear power without also considering the impact of alternatives such as coal. In particular, he said, “reliance upon coal, on the other hand, could aggravate the ‘greenhouse effect,’ whereby excess carbon dioxide (which accompanies coal burning) traps heat inside the earth’s atmosphere, thus possibly melting the icecaps and raising the level of the oceans.” He apparently viewed this as a speculative concern, however, since he immediately added that coal “more realistically” could cause harm to coal miners and other health effects. The other article about nuclear power also observed in passing that “coal combustion may disrupt global weather patterns by increasing the amount of carbon dioxide in the atmosphere, creating a ‘greenhouse effect.’”

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In another article, Herbert Taubenfeld recounted that:

“In 1980, when I spent the summer with the International Division of the EPA, I did an exercise in ‘forward drafting.’ I tried to draft an international treaty limiting the production by all methods of carbon dioxide (to control the global warming trends caused by increasing levels of carbon dioxide) and limiting the production of chlorofluorocarbons (in particular, limit the production of freon, which is the most important element used in refrigeration and air conditioning processes).”

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Edith Brown Weiss

A 1981 article by Edith Brown Weiss provided the most thorough (as well as thoughtful) treatment of the climate change issue.... Given the higher level of scientific uncertainty forty years ago, Brown called for consideration of a series of measures, including requiring environmental impact statements to include CO2 emissions, removal of CO2 from smokestacks, and limits on the use of coal. She also called for international consultations and for strategies to deal with deforestation.  Given the uncertainties, however, she said that the issue “should not be pushed into high-level political debates that would cause countries to adopt premature positions based on inconclusive premises and embedded in national political rhetoric.”

I suspect that there were several reasons why legal academics failed to focus more on climate change in this early period. First, the problem was more remote forty years ago than it is today. There was also much more scientific uncertainty about the magnitude of warming and its impacts than there is today. Second, there weren’t any legal developments to talk about, with the first UN treaty 7-10 years in the future. Third, there was so much else going on in environmental law. For instance, Weiss wrote the year after the Superfund law was passed and barely a decade after the Clean Air Act went into effect.

Whatever the reason, legal scholarship seems in retrospect to have been a bit slow to focus on the issue of climate change.  With a few exceptions, legal academia cannot claim much credit for foreseeing how large the issue would loom in the future (now).

LA's water and history

Richard Frank recently posted at Legal Planet on "The Latest Chapter in Los Angeles’ Century-Long Water War With the Eastern Sierra’s People & Environment". Frank begins:

There LADWP goes again.

Recently the Los Angeles Department of Water and Power announced it was walking away from its longstanding obligation to provide Mono County residents and the environment with a tiny fraction of the water it transports from Mono County to LADWP’s urban customers in Los Angeles.  When efforts by county officials to resolve the dispute informally with LADWP failed, the County sued, arguing that LADWP’s unilateral action violates California’s most iconic environmental law, the California Environmental Quality Act (CEQA).  Earlier this year, a trial court agreed, ruling in the County’s favor.  The court found that LADWP’s decision to turn off the Mono County spigot without prior environmental review violates CEQA.  Now LADWP has chosen to appeal this adverse ruling to the California appellate court—where it is likely to lose again.

If LADWP’s action were an isolated incident, observers might well conclude that this is simply the latest chapter in California’s seemingly interminable water wars.  But it’s not.  To the contrary, LADWP has a sorry, 120-year history of treating the rural people and natural resources of the Eastern Sierra as a population to be exploited and an ecosystem to ravage.  Fortunately, the courts, state officials and environmental advocates have in the past repeatedly intervened to halt or moderate LADWP’s economic and environmental depredations.  Unfortunately, they need to do so again in order to stop LADWP’s announced water cutoff.

There's lots more legal history in this interesting and timely post.

Weir Pond, Eastern Sierras

Environmental law in Rome and beyond

For the Italian speakers among you (courtesy of the ESCLH blog): The Laboratory of Legal and Economic History at Università degli Studi "Magna Graecia" in Catanzaro will be holding a conference on "The environment between law and economics: a long journey from the Roman world to the contemporary age" on 3-4 December 2021. The program and links for remote participation are below and on the website Storia del diritto medievale e moderno.

The various reasons for killing wolves

Pieter Serwouters, Wolf hunting (1642)

The journal Environment and History just posted an article by Kristiaan Dillen, "The Various Reasons for Killing Wolves in the Fifteenth-Century Liberty of Bruges". The abstract:

In the fifteenth-century Liberty of Bruges, a rural castellany in the county of Flanders, a bounty system was established to promote the elimination of wolves. Prize money made the wolf not only an unwanted but also an actively tracked animal, a combination that resulted in its wholescale slaughter. Researchers who have previously examined these bounties believed that they were primarily part of a system of pest control. They did not realise, however, that the inhabitants who came forward to claim the bounty killed wolves not to clear the Liberty of Bruges of vermin but for entirely different reasons, which depended on the context in which encounters with wolves occurred. In this text, I use the records concerning the bounty system established by the Liberty of Bruges to understand the complex relationships between humans and wolves in this fifteenth-century castellany. I first introduce the long series of records; thereafter, I attempt to identify reasons for killing wolves in the Liberty of Bruges and the contexts in which such killings occurred.

And from the conclusion:

Was the establishment of the bounty system indeed a sign that the wolf was not wanted? Judging from the long series of data from the accounts of the Liberty of Bruges, we can conclude that killing a wolf often also meant the opposite, as doing so signalled noble status and provided additional income. Thus, it is not entirely correct to regard the slaughter of wolves merely as a form of pest control or, as it is referred to today, a type of ‘management hunt’. Wolves were unwanted but ostensibly respected. In contrast to the attitudes towards other animals, such as crows or pigs, which were kept out of fields or cities by means of a system of fines, not bounties, people’s behaviour towards wolves was not regulated and corrected.