Tuesday, November 24, 2015

Art and the history of environmental law - part I

I'm happy to report that my article, "Art and the History of Environmental Law", has been published by Critical Analysis of Law. CAL's online format, along with excellent editing, made publishing an article with lots of color pictures a real possibility; my article has 29 color figures, a level of illustration impossible in print journals, even one as amenable as Environmental History to this kind of work.
Claude Monet, Boats in the Pool of London, 1871, private collection 
Since I really like the pictures I collected, I decided to share some of them on this blog as well, along with modified excerpts from the article, in a series of posts. Today's, the first installment, outlines the justification for the project.

The first reason for my turn to art is prosaic. Traditional legal sources—treatises, digests, national legislation, and appellate decisions—clearly dedicated to identifiably environmental topics were few and far between before the 1970s, and so legal-historical research of even the simplest sort—identification of the norms of positive law—needs to take up whatever tools, however indirect, it can find. Though the physicality of the environment seemingly makes environmental law a good candidate for historical investigation based on visual sources, the legal element of environmental issues has only been foregrounded infrequently in art, even when environmental issues are clearly the subject of that art. Beyond this seemingly technical task, art may be a useful source for two further dimensions of the historical understanding of environmental law: it might provide insight into the background conditions—environmental and cultural—against which and in reaction to the law developed; and it might provide data for assessing the effectiveness of environmental law.

It is, of course, problematic to assume that a work of art presents an accurate representation of historical reality;  even on the level of subjective perception, assuming that the work of an individual artist is somehow representative of general attitudes may be unwarranted. Nonetheless, the potential profit to be gained from this heretofore unexamined set of sources seems great enough to justify a tentative attempt at using art to try to learn something about the history of environmental law that we might not be able to learn otherwise. In this article I would like to use art mostly as evidence of historical attitudes towards environmental issues, but I believe that it also has some value as evidence of the physical environment in history. As Peter Brimblecombe writes:

Saturday, November 21, 2015

Garrett Hobart

According to Michael McGuire at This Day in Water History, today is the 116th anniversary of US Vice President Garrett Hobart's death. McGuire writes:
While much is known about Hobart’s role as vice president (1897-99), his role in the formation of private water companies and his support of these companies through legislation is less well known. Hobart was elected to the New Jersey Assembly and Senate during the early part of his career. During the 1870s and 1880s there was a lot of legislative activity that appeared to be for the benefit of private water companies.
In 1881, one bill that was introduced by Garret A. Hobart, then a state senator, was designed to give private water companies the power to acquire and distribute water resources independent of municipal or state control.  While not explicitly stated, the bill purportedly had a single intention of giving one company, the Passaic Water Company, more power to access water supplies to prevent water shortages at the factories of Paterson which were forced to idle production in the summer season.
The bill was not successful, which was undoubtedly due in part to the widespread suspicion that the bill would grant powers to companies to export New Jersey water supplies to New York.  “[New York speculators] have been attracted by the magnificence and extent of New Jersey’s water-shed, and by the sweetness and purity of its waters.  Last year’s scheme was said to be intended to enable the tapping of New Jersey’s hills for the New York supply.”
Hobart was a resident of Paterson, New Jersey for most of his life. In 1885, Garret A. Hobart joined the Board of the Passaic Water Company and two years later was elected President of the Company.  Hobart was described in one source as representing a syndicate of New York capitalists. The company had been supplying Paterson and the surrounding area since 1857.
The East Jersey Water Company was formed on August 1, 1889 for the stated purpose of supplying Newark, New Jersey with a safe water supply.  All of the men who were shareholders of the new company (including Hobart) were identified with the Lehigh Valley Railroad Company. However, the company’s vision extended far beyond a water supply for Newark. The company began as a confidential syndicate composed of businessmen who were interested in executing grand plans for water supply in northern New Jersey and New York City. Nothing came of these grand plans.
For more, including omitted citations, see the blog.

Tuesday, November 17, 2015

A pollution market in history

I recently came across a 2014 dissertation by Krystal Tribbett, "RECLAIMing Air, Redefining Democracy: A History of the Regional Clean Air Incentives Market, Environmental Justice, and Risk, 1960 -- present". The abstract:
Depending on whom you ask, the Regional Clean Air Incentive Market (RECLAIM), the nation's first regional smog market, is either a revolutionary approach to cleaning the air of the South Coast Air Basin, the most polluted region in the country, or a failed social experiment that put the interests of business and the marketplace above public health. In its original iteration, RECLAIM rules were intended to produce emissions reductions consistent with the command-and-control approach to compliance embodied in an Air Quality Management Plan, but with greater efficiency, effectiveness, and flexibility—a goal RECLAIM in large part met. In an ideal application of emissions trading, public welfare and economic growth should have been jointly protected, and previous studies of RECLAIM have focused on the normative implications of the program, condemning suspected environmental injustices or praising economic efficiency without exploring the significant historical roots of market-based solutions. A closer look at these historical roots reveals the ways in which RECLAIM actually succeeded in improving air quality through difficult compromises and negotiations by regulators, environmental activists, politicians, and businesses.
This dissertation recounts this fuller history. It is about the history of market-based mechanisms to control air pollution in Southern California, and, in a broader sense, the history of neoliberalism and the process of neoliberalising nature. It traces the history of American air pollution laws from the 1960s to the present and finds a symbiotic relationship between federal and state governing bodies that led to the establishment of RECLAIM. The history told here shows that the development of RECLAIM was not wholly neoliberal, imposed intentionally by policymakers, venture capitalists, or academics with a neoliberal agenda. What emerged out of the archives and newspapers was a story of the organic evolution of markets to address air pollution that was shaped both by political processes and academic/theoretical arguments intended to find a compromise between public demands for clean air, political concern about economic growth, and industry pushback against regulation. This dissertation thus argues that in the United States neoliberal policies to govern nature are outcomes of struggles to balance societal values (like clean air) with political, economic, and scientific realities.

Sunday, November 15, 2015

The common cup

The blog This Day in Water History notes that today is the 105th anniversary of the abolition of the "common cup" by New York State. The blog explains:
November 15, 1910:  New York Times headline—Would Abolish Common Cup. “Albany, Nov. 15—“There is no excuse for a public drinking cup, on the train or anywhere else, now that penny-in-the-slot machines serve out paper cups and that metal collapsible cups can be purchased for a dime,” says a circular sent out by the State Department of Health. The Health Department is co-operating with the railroads to do away with the public drinking cup on trains and in railroad stations. It is stated that there is great possibility of the transmission of disease by the use of the common drinking cup….”
Commentary:  On October 30, 2012, we observed the 100th anniversary of the first drinking water regulation, which was adopted by the U.S. Treasury Department that prohibited the use of the common drinking cup on interstate carriers. Individual states like New York and Kansas led the way by raising awareness of this serious public health problem. Seven articles in my blog safedrinkingwaterdotcom provided a countdown to the anniversary date.
Click through to the October 29 post for a more extensive history.

Friday, November 13, 2015

Race and pollution

Brittany Fremion recently reviewed Ellen Griffith Spears, Baptized in PCBs: Race, Pollution, and Justice in an All-American Town (UNC Press, 2014) for H-Environment. From the review:
Even though scholars and activists did not begin identifying environmental racism until the 1980s, Spears reveals how the unequal allocation of environmental hazards extends across space and time. In the first four chapters, Spears explains how Anniston became a model city of the New South and home to the chemical industry, which developed close ties to the US military during the two world wars. In doing so, she unpacks the problematic relationship between the former by explaining how a lack of regulatory oversight led to the tragic contamination of human bodies and ecosystems. As the Cold War escalated, so too did the military’s involvement with chemical development and production, which found a new home at Anniston’s Fort McClellan in the 1960s, “the free world’s largest training center for chemical, biological, and radiological warfare” (p. 94). By placing the modern environmental justice movement within this historical context, Spears is able to show the ways in which privileged toxic knowledge developed among corporations and created hazardous landscapes in Anniston that reflected the legacy of social and environmental disparities in the United States.
But Anniston’s residents were not passive victims. In chapter 5, Spears explores the tradition of nonviolent protest in the city to demonstrate that residents owed much to the civil rights movement, which shaped contemporary environmental justice campaigns by linking social justice to environmental issues. Prior to the campaign to hold Monsanto accountable for PCB contamination and the initiative for safe disposal of chemical weapons, Anniston attracted national attention with the burning of the Freedom Riders bus on Mother’s Day in 1961. White and black residents were versed in the language and experience of protest—be it in support of equality or not. Thus the Anniston campaigns also revealed important challenges created by racial and class differences: white middle-class and professional people dominated the anti-incinerator fight whereas the African American community spearheaded the PCB initiative, largely as a result of residential geography. When activists in both efforts joined forces, they did so uneasily. For instance, Spears reveals that the Monsanto campaign linked whites whose relatives and friends had been mid-century instigators of racial violence with residents of color who had sometimes been the targets of that violence. Despite these conflicts, legal victory over Monsanto and the emergence of a national campaign that forced the army to both provide residents with protective equipment and operate with greater transparency revealed the the power of grassroots activism.
In the remaining chapters, Spears explores the rise of PCB as the world’s most notorious chemical and the factors that drove chemical policy reform in the early 1970s, most important, the passage of the Toxic Substances Control Act, which led to the end of PCB production. But as Spears reveals, the aftermath of those reform efforts bred citizen action. In Anniston, Monsanto began burying its chemical wastes and the army announced plans to build a hazardous waste incinerator to dismantle outdated Cold War-era chemical weapons at the Anniston Army Depot. In the late 1980s people locally began to question those practices. Thus, a grassroots, cross-class, and ultimately biracial and bipartisan movement emerged to challenge environmental injustice—activists used coffins to block Monsanto’s bulldozers, staged die-ins, filed lawsuits, and donned hazmat suits at rallies. In her final chapter and epilogue, Spears offers an assessment of their achievements.

Tuesday, November 10, 2015

The environmental amendment to the Pennsylvania Constitution

The Environmental Law and Sustainability Center at Widener University recently hosted a talk by Franklin Kury on “The Environmental Amendment to the Pennsylvania Constitution: How It Came to Be and Where It is Going”. You can view the lecture here. The website explains:
Kury was elected to the Pennsylvania House of Representatives for three terms (1966–1972), where he was the author and lead advocate for the environmental rights amendment to the state constitution (Article I, Section 27).  In 1972, he was elected to the first of two terms in the Pennsylvania State Senate, where he became a leader in government reform. 
Nicholas A. Tonelli, Meander (Susquehanna River, Asylum Township)

Sunday, November 8, 2015

Why tragic commons endure

Zachary Bray recently posted "Texas Groundwater and Tragically Stable 'Crossovers'", an article that raises an interesting theoretical question for legal-environmental history. The abstract:
One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes — systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some tragic commons regimes, they are almost self-evident.
Such persistent and obvious tragic commons regimes invite the obvious question: why do they endure? Some persistent tragic commons regimes are particularly puzzling in this respect, because at times they may appear to hesitate right on the verge of positive transformation, only to revert back to tragic stasis when apparent moments of change present themselves. In this Article, I claim that Texas groundwater law represents just such a persistent and puzzling tragic commons regime.
Recent literature has pointed out the ways in which tragically stable commons regimes can resist forces of change and emerging values from rival institutions and analogous commons contexts. In this Article, I pursue a related line of inquiry to examine a different and previously under-examined phenomenon. Using Texas groundwater as an example, I show how an internally dynamic commons regime on the cusp of positive change can be tragically stabilized by values and legal doctrines drawn from rival institutions and analogous commons contexts. I then argue that unless this tragic crossover is decisively broken, the law and institutions that govern Texas groundwater are likely to remain tragically stable.
[A Public Mineral Water Well], 1910, Boyce Ditto Public Library, Mineral Wells, Texas

Saturday, November 7, 2015

Property in the Prussian forest

The recent issue of Environment and History had a review by Charles Closmann of Jeffrey K. Wilson, The German Forest: Nature, Identity, and the Contestation of a National Symbol, 1871-1914 (U. Toronto Press, 2012). After discussing the book's treatment of German cultural attitudes to the forest, Clossman writes:
Subsequent parts of the book examine debates about how to manage Germany’s forests. Drawing from minutes of the Prussian Landtag, Wilson shows how conservative landowners supported what they considered to be modern definitions of property rights in debates over an 1880 Prussian Forest Law. On the other side, left liberal critics supported the public’s traditional right to wander freely in the woods, collecting timber for fuel, gathering berries, and picking mushrooms. A subsequent chapter traces debates over Berlin’s Grünewald, with Wilson demonstrating again how left-liberal and some working class critics demanded that the Prussian state preserve a major forest in the city’s outskirts. In this case, enthusiasm for a beloved forest stemmed not from irrational anxiety about modernity, but in part from a desire to enhance recreational opportunities for the working class. Wilson notes, ‘The struggle to protect the Grünewald demonstrates the rational and progressive aspect of the forest discourse’ (p. 131).
Support for forest preservation also came from the state, for different motives. In chapter five, Wilson shows how Prussian state foresters attempted to restore the degraded forests of the Tuchel Heath, in the Prussian East. In this case, state officials intended to scientifically manage the region’s forests and to discipline what they saw as an ethnic Polish population desperately in need of German Kultur. A dramatic story of heroes, thieves and frustrated officials, the story of the Tuchel Heath is well-supported with documents from German and Polish sources, and with lively illustrations from Oskar von Riesenthal’s Bilder aus der Tucheler Heide. 
See here for an earlier article by Wilson on a similar subject. For more on German working-class environmentalism, see here.

Sunday, November 1, 2015

State ownership of wildlife

A few months ago we noted some blog posts on the decision of the US Supreme Court in Horne v. Department of Agriculture, which seemed to seemed to revive the doctrine that wildlife is state property. Now there's an article: John Echeverria & Michael Blumm, "Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife". From the abstract:
In Horne v. Department of Agriculture, the Supreme Court expanded its so-called per se analysis under the Takings Clause to government actions impairing possession of personal property. The Court decided that a New Deal era agricultural program effected a taking by requiring raisin growers to turn over a portion of their crops in certain years to a governmental body that disposes of the raisins in noncompetitive markets. The raisin marketing program, which by law only persists with continuing support from the raisin industry itself, aims to control the market supply of raisins, and thereby elevate and stabilize the prices received by raisin growers. Despite the unusual character of the program, a majority of the Court ruled that certain dissident raisin growers were entitled to prevail on their theory that government "appropriations" of personal property interests in raisins were governed by the same per se takings rule that applies to government appropriations of real property.
The Horne decision did include an unexpected result of considerable benefit to government defendants, however: the Court distinguished the raisin marketing program from a similar program involving oysters that it upheld against a takings challenge in a 1929 decision. The Chief Justice explained that, unlike raisins, oysters were public property. The Court thereby ratified the venerable but somewhat misunderstood doctrine of sovereign ownership of wildlife. States employ this doctrine, inherited from England and nearly universally adopted by American states, to uphold wildlife conservation regulations and defeat claims of private ownership. Often referred to as the “wildlife trust,” the doctrine is the kind of “background principle” of property law that the Court recognized as defeating claims of takings in its 1992 decision of Lucas v. South Carolina Coastal Commission
In this article we examine the Horne decision in some detail. Although the case does extend the Court’s takings jurisprudence to an uncertain extent by applying the per se analysis to personal property, we think the long-term ramifications of the decision lie in the Court’s recognition of the sovereign ownership of wildlife. That doctrine not only will defeat private takings claims but should sanction affirmative regulation of wildlife and protection for its habitat, authorize government actions to recover damages against those harming wildlife and wildlife habitat, and reinforce public standing to enforce the wildlife trust.

Saturday, October 31, 2015

Regulating Lake Tahoe

Jerry Frank recently reviewed Michael Makley's Saving Lake Tahoe: An Environmental History of a National Treasure (U. Nevada Press, 2014) for H-Environment. Frank writes that at the heart of the book lays the belief that “the lake’s heritage must take precedence over the unrestricted use of private and commercial properties” (p. 1):
The vast majority of the book offers a blow-by-blow account of the various attempts to manage a unique and highly desirable landscape that straddles two states and encompasses a complex bag of economic, legal, and environmental interests. The narrative focuses primarily on the 1969 creation of the first bistate regional agency—the Tahoe Regional Planning Agency (TARPA)—and the “innumerable problems” it has faced in attempting to manage this complex ecological resource (pp. 1, 3).
The task at hand—balancing private property rights against environmental health of both common and shared resources—was exceedingly complex. And, as the author argues, the structure of TARPA has seldom been up to the challenge. Those in favor of economic development, including powerful casino interests, often controlled TARPA and pushed a pro-business agenda. This often pleased many, but not all, of the locals. Many concerned with the environmental health of the lake, including leadership of the Sierra Club and many elected officials from the state of California, were often at odds with further development around the lake and in favor of more stringent environmental protections. The difficulties in getting these interests to coordinate their efforts has led to a seemingly endless string of disputes, some of which have found their way to the Supreme Court.
There is much in Saving Lake Tahoe of value. It is certainly the most detailed look at the complex efforts to share this fragile and valuable resource. That said, there are deficiencies. Books that focus on policy issues must balance the details required to understand the fine points of the policy against providing a compelling narrative. In this instance, the complex history of TARPA combined with the author’s close personal connection to the material often makes it difficult for him to step away from the weeds and offer broader analysis of the proceedings. Had he used a stronger analytical frame he would likely have had more success in this regard. Arthur F. McEvoy’s The Fisherman's Problem: Ecology and Law in the California Fisheries (1986) comes immediately to mind. Lake Tahoe, which is both a private and common resource, presents a history of failed regulation. At the heart of that failure was the inability of a myriad of governing bodies to cooperate in such a way that management of the resource reflected the dynamic nature of the resource itself. Had the author engaged in a more rigorous way the deeper meaning and import of Tahoe’s history by engaging more of the historiography of resource regulation, Saving Lake Tahoe could have had a greater impact. Still, for those interested in the decades-long battles to save this incredible resource, Saving Lake Tahoe will be of value.