More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :

Natural transplants

A few months ago the NYU Law Review published an article by Vanessa Casado Pérez and Yael R. Lifshitz, "Natural Transplants". The abstract:

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

Linnaea Mallette, Wind turbines in the ocean

Negotiating the maritime commons

Another chapter from the previously-noted book, Greening Europe, is "Negotiating the Maritime Commons: Protecting the Baltic Sea in a European Context", by Simo Laakkonen and Tuomas Räsänen. The abstract:

The environmental history of the seas and oceans has generally remained a relatively unexplored theme. This chapter addresses the environmental history of the Baltic Sea, which is a European sea par excellence and the only sea that is entirely located within the continent. We will examine the links between wider historical currents in Europe and the marine environmental history of the Baltic Sea by focusing on three environmental regimes from the end of the nineteenth century until the 1990s. The first environmental regime was developed on an urban level and prevailed from the late nineteenth century until the Second World War. The second environmental regime was developed from the 1960s until the 1970sonaninternational level in the Baltic Sea region. The third environmental regime, spanning the 1980s and 1990s, consisted of developing wider European cooperation. These three different environmental regimes continue to cooperate in the region even today.

Nature versus the common law

A little while back I published "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" in the French journal Clio@Themis. The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. As the article shows, they did so consciously, explicitly granting nature normative force. It also looks at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. 

The question of whether environmental factors required or justified a departure from the inherited rules of the common law arose in courts around British Empire and United States in connection with a variety of legal issues, four of which are examined in the article: a) the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public ; b) conflicts over property rights following shifts in the course of a river ; c) the issue of the degree of liability of reservoir owners for damage caused to others by escaping waters ; and d) conflicts over whether water might be diverted from a river for irrigation, to the detriment of downstream landowners.

Discovery of the Hudson River, Albert Bierstadt, 1874

I'll be posting some selections from the article later.

Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

The legal environment and communal irrigation

The latest issue of the International Journal of the Commons has an article by Steven M. Smith, "Dynamics of the Legal Environment and the Development of Communal Irrigation Systems". From the Introduction (citations removed):

Archinia, Acequia System of El Rancho de las Golondrinas

Given the importance of external forces to the success of the commons, calls to integrate political ecology with the commons literature are becoming a common refrain. The combination can be approached from both directions: how do power structures shape institutions and how do institutions shape power structures? I take a historical perspective to explore both questions and their dynamic relationship. Specifically, I consider how external legal changes alter the incentives for how local users organize themselves and how those changes in local organizations alters the political coalitions, affecting subsequent legal changes.

To explore the question, I document and analyze the evolution of the legal environment and the development of communal irrigation systems, known as acequias, in current day New Mexico, US. Acequias have been held up as a case of a long-lived successful communal management regime of a natural resource . In the region of study, some acequias date back to the 16th century when Spain first colonized the area. The acequias have experienced sizeable shifts in their external legal surroundings, most rapidly and significantly during the US territorial period (1851–1912), that can be used to assess the relationship of external legislation and communal irrigation systems.

50 years ago

Daniel Farber goes back to the history of American environmental law again in his recent Legal Planet post, "50 Years Ago: Environmental Law in 1973". Farber writes:

Like today, 1973 was a time of political turmoil. The bitterly divisive Vietnam War was winding to an end, and much of the news that year was dominated by the Watergate scandal that ultimately brought down President Nixon. One subject stood outside the political turmoil: environmental law. In an EPA survey, 85% of the public thought pollution was a big problem.

The passage of the ESA highlights the extent of the national consensus over the environment. It’s a controversial law today, but it passed the Senate unanimously and the House by a 355-4 margin. In signing the bill into law, President Nixon said: “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.”  He congratulated Congress for “taking this important step toward protecting a heritage which we hold in trust to countless future generations of our fellow citizens."

After summarizing some judicial decisions of the year, Farber continues:

Efficiency and equality in US environmental regulation

Kunal Parker recently reviewed Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton UP, 2022). There's a lot here that's relevant to the history of environmental regulation. First, Parker's summary of Popp Berman's argument, with obvious implications for understanding historically some mainstays of environmental policy, such as cost-benefit-analysis and market tools for regulation:

The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.

The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right.

By the time Ronald Reagan was elected president, the economic style introduced during the Kennedy and Johnson years had become thoroughly entrenched. Indeed, it had become the hegemonic approach to solving all manner of public problems, its ubiquity and self-evidence continually reinforcing each other. Reagan Republicans would employ the economic style, but the ground had been laid for them decades earlier by Democrats. Indeed, Popp Berman argues, Democrats proved far less strategic in using the economic style than Reaganites. Democrats privileged it as a method in context after context and allowed it to subsume their substantive ends. By contrast, Reaganites were more selective and often successfully subordinated it to their substantive ends.

Parker, though, queries whether equality was actually the guiding principle in the pre-efficiency era:

Voluntarism and deregulation

Rachel S. Gross recently reviewed Jeffrey K. Stine's Green Persuasion: Advertising, Voluntarism, and America's Public Lands (Smithsonian 2021) for H-Environment. Gross writes:

In the 1980s, Hollywood tough guy Charles Bronson took his vigilante reputation to the world of public service. Bronson was a perfect poster boy for the Ronald Reagan-era PR effort, Take Pride in America. In TV ads, Bronson, along with fellow actors Clint Eastwood and Louis Gossert Jr., decried “bad guys who beat up on trees” and encouraged listeners to take voluntary action to help solve the problem (p. 62). The Take Pride ads were a curious take on the pressing environmental issues of the day. To be sure, vandalism did occur but to name that as a central environmental issue and to use Bronson’s image to convey pride in land as a masculine and patriotic concern were deflections. Just what these ads were a distraction from is the question that Jeffrey K. Stine addresses in Green Persuasion: Advertising, Voluntarism, and America’s Public Lands. Stine argues that the Take Pride in America campaign, which pushed voluntarism as a solution for the issues plaguing public lands, was a reflection of the conservative ideology that government was a problem rather than part of a solution. The Take Pride in America program suggested “that the enlightened self-interest of the private sector offered the ideal approach to public lands stewardship” (p. 53).

*****

Stine faces a challenge in that his book is an analysis of a government program that in the author’s own assessment was ultimately ineffectual and unimportant. In addition to showing the program’s lack of effectiveness, Stine also makes the case for why such an analysis is necessary. For Stine, the office was a failure but a revealing one, in that its longevity reveals a political history of conservative approach to environmental (lack of) action. Namely, Take Pride in America and the agenda of voluntarism it pushed via a succession of Republican administrations reflect a partisan divide on environmental policy, where conservatives aimed to deflect attention away from how they underfunded federal land agencies.

"Environmental law" - a response to Farber

I have some objections to a recent post by Dan Farber at Legal Planet, "Learning to Name Environmental Problems". 

Farber raises the interesting issue of when various issues seen today as "environmental problems" became thought of as such by the law, both in terms of seeing various issues – air pollution, water pollution, wilderness protection, and so on – as parts of a larger problem, and with regard to use of modern terms like "environment" and "pollution". But I think his answers are problematic.

Farber focuses on US Supreme Court decisions, finding its earliest uses of "air pollution" and "water pollution" and references to wilderness as something worthy of preservation in decisions from the 1960s. He also goes on to state that "The 1960s were also Congress’s first forays into issues like air and water pollution, wilderness protection, and the endangered species.  These developments set the stage for the blossoming of federal environmental law with the passages of NEPA, the Clean Air Act, the Clean Water Act, and other major legislation in the decade that followed."

Even allowing for methodological nationalism and the focus on the unrepresentative Supreme Court, this is all rather strange.

Paul E. Wolfe, Los Angeles County Air Pollution Control District vehicle, Burbank, 1947-1950?