A model treaty for transboundary pollution

The Scandinavian Journal of History recently published an article by Melina Antonia Buns, "Making a model: the 1974 Nordic Environmental Protection Convention and Nordic attempts to form international environmental law". The abstract:

This article investigates the 1974 Nordic Environmental Protection Convention. It shows that the ulterior motives for such a convention were Nordic ambitions to regulate and reduce transboundary pollution originating outside of the Nordic region. Emphasizing the inter-organizational dynamics between institutionalized Nordic cooperation and international organizations, it examines how the Nordics drew on developments within international organizations and how they pursued their agenda of shaping international environmental law within the OECD. Ultimately, the article argues that the Nordic countries tried to create a model convention to be exported to and implemented at the international level with the aim of reducing transboundary pollution and establishing transnational responsibilities and accountabilities. By setting out this argument and shedding light on the first legally binding international convention to address transboundary pollution with procedural principles, the article breaks new ground on the history of Nordic environmental cooperation as well as on the development of international environmental law.

Black snow, Tryvann, Oslo in 1974 (NILU - Norwegian institute for Air Research, nordics.info)

Bounties and land-use regulation

Jack Whiteley recently posted "Property in Wolves", forthcoming in the Cornell Law Review. The abstract:

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

Note: Apparently bounties are still with us, as can be seen in the recent poster below. 

(Boise State Public Radio)

Carbon dioxide as an air pollutant

More on the co-production of environmental science and law: Just out in Environment and History is an article by Ashton Macfarlane, "The Many Pollutant Identities of Carbon Dioxide: Global Climate Monitoring and Air Pollution Research in New Zealand, 1968–1975", that discusses the way carbon dioxide was framed as an air pollutant due to the modern air pollution statutes of the 1960s and '70s. The abstract:

In the late 1960s, New Zealand and the United States collaborated to establish a southern hemispheric carbon dioxide (CO2) monitoring station on New Zealand’s coastal cliffs. The New Zealand CO2 Project, as it came to be known, is an underappreciated landmark in the history of environmental monitoring. The archival record of its early years reveals the extent to which efforts to measure atmospheric carbon dioxide concentrations interacted closely with one of the most hotly debated political issues of the mid-twentieth century: urban air pollution. The designation of CO2 as air pollution on a planetary scale had profound legal implications in an era in which clean air legislation increasingly brought air pollution within the scope of governmental regulation, and administrative agencies began to jostle for control of the monitoring enterprise. The precise nature of CO2 as an air pollutant, however, was difficult to pin down. In these initial years of concerted carbon dioxide monitoring, when the lines between climate science and air pollution research were still blurred, CO2 developed its many pollutant identities. The nature of these identities – and the ways in which scientists and science administrators negotiated their boundaries – retain their relevance today, as nations continue to link air pollution and climate legislation in the twenty-first century.

NIWA's Baring Head monitoring station (Dave Allen)

Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

The Wildlife and Countryside Act 1981

The latest  issue of the English Historical Review has an article by Matthew Kelly, "Habitat Protection, Ideology and the British Nature State: The Politics of the Wildlife and Countryside Act 1981". The abstract:

The Wildlife and Countryside Act 1981 was the most important piece of environmental legislation passed by a British government since the National Parks and Access to the Countryside Act 1949. It sought to enhance the protection of listed flora and fauna, prevent further damage to existing habitat and resolve issues that had arisen with respect to rights of public access to the countryside. Although the bill was long and complex, many of its provisions sought to rationalise existing statutes or extend existing provision rather than create new powers. Provisions seeking to protect habitat proved highly contentious. The proprietary interest resented what it saw as an unjustified interference in private property rights; statutory bodies were alarmed that the centralising aspects of the Act would empower ministers at the expense of their ‘scientific’ independence; and the emergent environmental lobby, increasingly frustrated by the cautious approach of the statutory bodies, was determined that the bill’s habitat protection provisions be strengthened. This article examines the lengthy and disputatious consultation and parliamentary process in terms of longer-term frustration with the apparent weakness of statutory protections and how it brought the environmental effect of agricultural intensification into mainstream political debate. This article contextualises the growing insistence that there was a public interest in the health of the natural environment and situates the argument with respect to what environmental historians have started to analyse as the history of the ‘nature state’, a distinct realm of state activity comparable to the welfare state, warfare state or security state.

Negotiating regulatory science

More on the law-science nexus: The latest issue of Comtemporanea has an article by David Stradling, "Negotiating Regulatory Science. Dredging the Great Lakes in the Age of Ecology". The abstract:

In the mid-1960s residents around North America’s lower Great Lakes expressed growing concern about the dumping of dredge spoils in open waters, which they suspected of harming water quality. The act of dumping spoils, particularly from industrial harbors, became a target for government regulators eager to show progress in solving the environmental crisis. Scientific studies of dredging’s ecological impact and the regulation of dredging increased in Canada and the United States. The multiplicity of bureaucracies involved ensured that the International Joint Commission (IJC), established to resolve policy conflicts along the international border, would address the issue of dredging. The IJC response to the dredging conundrum provides a case study of how bureaucracies negotiated scientific knowledge in the age of ecology. Scientists turned data into knowledge and knowledge into policy guidance inside bureaucracies with conflicting missions that reflected divisions in the broader public. The public’s vague but powerful fear about sediment tainted by the industrial cities in which it accumulated forced the creation of a remarkable body of scientific knowledge related to how pollutants move through and accumulate in lake ecosystems. Activists forced governments to define pollution, to determine which of the many effluents of industrial cities affected human and ecological health, and at what concentrations they became a threat. In the age of ecology, regulation often outpaced science, and scientific research raced to meet public demands.

Corpus linguistics and the history of environmental law

The article by Caroline Laske in the new issue of Comparative Legal History, "Corpus linguistics: the digital tool kit for analysing language and the law", argues for the utility of this computational methodology with an example (among others) from the history of environmental law. First the article abstract:

Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us understand not just what is being said, but also how it is being said, how language is used to encode meanings, and what that can tell us about underlying contents and the socio-political, cultural, geopolitical, economic, and other contexts and discourses in which these texts were produced. This paper argues that the use of corpus linguistics is relevant across comparative legal history and can be applied in comparative legal historical research independent of the area of the law or the historical period. Detailed studies incorporating corpus linguistics will be discussed to show the potential of this methodological shift.

The example of environmental law is used to demonstrate how corpus linguistics (CL) can be used to study rapid change in the law (notes omitted):

Crusader riparian rights

The latest issue of Water History has an article by Tobias Hrynick, "The mills of god grind slowly: the Na’aman River milling dispute and the thirteenth-century hydraulic crisis in the Crusader States", that looks into a dispute over water rights between neighboring water mills that seems a precursor to the riparian-rights disputes that were so numerous in the nineteenth century. The abstract:

In the mid-thirteenth century, the Hospitaller and Templar military orders engaged in a long-running dispute over the supply of water to two hydraulic gristmills outside the city of Acre in the Crusader Kingdom of Jerusalem that prompted international scandal, royal and papal intervention, and mutual attempts at sabotage. This article examines this dispute in the context of a broad survey of milling operations in the Crusader States and argues that this dispute was representative of a widespread hydraulic shortfall in the Latin East by the thirteenth century, when the kingdom’s military collapse and the increased cultivation of sugar cane aggravated a pre-existing shortage of water-power in the relatively labor-poor eastern Mediterranean. The efforts of local landholders like the military orders to maintain access to hydraulic resources provide an instructive example of a pre-modern society’s efforts to accommodate an environmental crisis.

The Templar mill on the Na'aman today (photo: Liorca)

The complexity of Roman water law

The latest issue of Water Alternatives has an interesting article by Alberto Quintavalla, "Roman Law and Waters: How Local Hydrography Framed Regulation". The article provides a fresh and nuanced look at how Roman law dealt with water, showing that it did not have a coherent or unified approach to the many sites and types of uses made of water, and drawing some possible lessons for modern law. The abstract:

Is there a relationship between the conceptualisation of water and its regulation? There is no simple or obvious answer to this question. This paper contends that the Roman regulatory framework mirrored the fragmented conceptualisation of water that was dominant in pre-modern times. The paper aims to show that water regulation is sensitive to the particular conceptualisation of water that a society adopts, which in turn reflects the specific historical period in which it is embedded. It also aims to show that there may be a way to deal with local hydrography differently from the paradigm currently promoted by the integrated water resource management framework. These considerations are not moot in today’s discussions on water resource management. 

Pont du Gard, part of the Nîmes aqueduct, France

Before Yellowstone

Dan Farber recently posted at Legal Planet on "The Arkansas Origin of National Parks". Farber writes:

The origins of the national park system is usually traced back Lincoln’s 1864 signature of the Yosemite Grant Act.  But Congress had actually had the idea of protecting extraordinary places over thirty years earlier, in Arkansas of all places. Hot Springs isn’t high on the list of American places to see, which may be one reason this episode had been forgotten. But it deserves to be remembered as a milestone in federal policy.

*****

On April 20, 1832, Andrew Jackson signed legislation to set the springs and surrounding mountains from development.  The legislation provides that the township surrounding the springs “shall be reserved for the future disposal of the United States, and shall not be liable to be entered, located, or appropriated, for any other purpose whatever.” The law also authorizes the governing to use the revenue from short-term leases of the spring to fund “the opening and improving such lands in said territory, as said legislature may direct, and to no other purpose whatever.”

Unfortunately, Congress didn’t appropriate any money to supervise the area, and the result was helter-skelter private developments. The private owners later sued to establish title to the land they were using, under a law that Congress passed specifically to authorize federal litigation on the issue. The Supreme Court ruled against them in In re Hot Springs cases, 92 U.S. 698 (1875). That ruling cleared the way for active federal management of the land by the Interior Department. The land is now a National Park.

Yellowstone is in some ways a clearer story about preserving nature. Hot Springs began with the different but related goal of ensuring that valuable public resource was used for the benefit of the public.  That may be one reason why the Hot Springs story hasn’t gotten as much attention.  Hot Springs did set an important precedent, however, about keeping land of public value out of the hands of developers. That’s a story worth telling.