The US Clean Water Act at 50

Another 50th anniversary: Legal Planet reports that the California Environmental Law & Policy Center at U.C. Davis School of Law will convene a conference to commemorate the 50th anniversary of the federal Clean Water Act on Friday, October 7th. Highlights include "a stimulating conversation between two water quality experts who were instrumental in drafting the Clean Water Act in 1972 and California’s landmark Porter-Cologne Act, the state’s comprehensive water pollution control statute that both predated and influenced the CWA."

The free, in-person conference will be held at the U.C. Davis School of Law.  Advance registration is required.

UNEP at 50

A little while back Environmental Politics carried a review by Katarina Eckerberg of The Untold Story of the World’s Leading Environmental Institution: UNEP at Fifty by Maria Ivanova (MIT Press, 2021). From the review:

UNEP’s mission was to assess the state of the environment and to inform, inspire, empower, and catalyse the UN system in environmental affairs. But why has progress been so slow? There is urgent need to critically assess what UNEP has achieved – and not – in the past 50 years, to investigate why it has yet not become sufficiently powerful in the struggle for a more sustainable world, and what can be done to improve this.

Maria Ivanova’s book helps to understand exactly those issues. It delivers profound knowledge about the functioning of international relations, politics, and administration in practice, by revealing how UNEP’s successes, crises, and turning points have been shaped by both politics, geography, and individuals within and beyond UNEP itself. The book addresses a concern at the core of international environmental politics, focusing on the history and performance of the world’s leading global environmental authority over 50 years.

Its theoretical contribution lies foremost in the thick narratives of the development of our major international environmental conventions – including reversing the depletion of the ozone layer, regional seas pollution, chemicals and waste, climate change, as well as tackling land degradation, and the loss of biodiversity and forests. By applying the concepts of capacity, connectivity, and credibility as elements of performance she guides us through both the empirical analysis and the potential ways forward. Capacity here refers to the people and resources, connectivity to infrastructure and representation, and credibility to authority and legitimacy of the institution.

Success on the commons

Last year Environmental History published a review by Frederica Bowcutt of Mexico’s Community Forest Enterprises: Success on the Commons and the Seeds of a Good Anthropocene, by David Barton Bray (U. Arizona Press, 2020). Some excerpts:

According to Bray, Garrett Hardin justified enclosure and centralized land management based on an ahistorical understanding; shared-pool commons have always been regulated by rules to prevent overuse. They are not, as Hardin suggested, a free for all. Ownership of land with valuable forest resources incentivizes rural Mexican communities to adopt, develop, and adhere to rules designed to prevent a tragedy of the commons. Results thus far indicate that community-based management of local forest resources “can be as effective as public protected areas in conserving forest cover and biodiversity, while also generating income for local communities” (p. 246).

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):