Thursday, December 18, 2014

CFPs: Occupation and Planning

Two announcements recently posted on H-Environment may be of interest to readers:

From the call for the 3rd Summer Institute at Cornell University (May 11-15, 2015), on the topic, “Occupation: Violence and the Long-term Control of Land and People”:
The theme of the Third Annual Summer Institute at Cornell University is military occupation and its civilian society relatives.
The goal of the Institute is to understand emergent meanings of occupation and recognize its paradigmatic potential for land and resource commandeering in episodes of war and peace. Participants will ponder these questions: How does military occupation insinuate itself into civilian governance after war episodes pass? How do models of military occupation inform (or not) non-military efforts to assert control over people and landscapes? How are subaltern occupations by the occupied similar to or divergent from military occupation? Other likely questions: How is military occupation changing in light of the changing nature of war? Does occupation ever improve conditions in subjugated zones (“transformative occupation”), an assumption informing today’s U.N. Peacekeepers and other humanitarian interveners? How do corporations occupy landscapes (patents, debt obligations, take-overs, accumulation by dispossession, land/sea grabs)? How is occupation different from enclosure, annexation, and colonial dominion? 
The application deadline is January 15. More at H-Environment.

from City of Philadelphia Zoning Maps (1933)
(Greater Philadelphia GeoHistory Network)
Also, the 16th national conference on planning history of the Society for American City and Regional Planning History (SACRPH) will take place in Los Angeles, November 5-8, 2015:
SACRPH cordially invites papers on all aspects of the history of urban, regional, and community planning, worldwide. Particularly welcome are papers or complete sessions addressing:
•    planning and the built environment in the U.S. Sunbelt
•    comparative and global studies of planning, especially of the U.S. West/Pacific Rim, or U.S. Southwest/Latin America
•    preservation planning in 20th-century cities
•    disaster and urban resiliency
•    the ethics of planning
•    planning and the law
Proposals are due February 15. More at the Society website.

Monday, December 15, 2014

In Memoriam: Gordon Bakken

We note the recent passing of historian Gordon Bakken (1943-2014). A leader in the fields of western American history and women's history, Bakken was also active at the intersection of legal and environmental history. Some publications:

    Man in cowboy hat
  • "American Mining Law and the Environment:  The Western Experience," 1 Western Legal History 211-36 (Summer/Fall, 1988)
  • "A Law for Water in the West: Irwin v. Phillips (1855)," pp. 314-15;  "The Hydraulic Society of the Colorado River: Arizona v. California (1963)," pp. 320-21 in John W. Johnson, ed. Historic U.S. Court Cases, 1690-1990 (Garland Publishing, 1992)
  • “An Inversion Layer in Western Legal History: Air Pollution in Butte, Montana," in Hendirk Hartog and William E. Nelson, eds., Law as Culture and Culture as Law (Madison House Publishers, 2000), pp. 264-91
  • "Water Pollution, Law, and the Collapse of Societies,” 17 Western Legal History (Summer/Fall 2004): 211-234
  • “Montana, Anaconda, and the Price of Pollution,” 69 The Historian (Spring 2007), 36-48
  • The Mining Law of 1872: Past, Politics, and Prospects (University of New Mexico Press, 2008)
  • “Mining and Pollution in the West: The Limits of Law Protecting the Environment". 21 Western Legal History (Summer/Fall 2008), pp. 209- 236
  •  “Colorado’s Impact on American Mining Law,” 49 Journal of the West (Spring 2010): 61-67

Saturday, December 13, 2014

250th post - some favorites

Today's post is the 250th on Environment, Law, and History!

Thanks to everyone who's written, comment, and encouraged. If you're interested in writing for the blog, or have any news or ideas that you think should be featured, please write me (dschorr[at]

Over the last year and a half we've covered a lot of interesting topics. Here are some of my favorite posts:

Sunday, December 7, 2014

Lynton Caldwell and NEPA

H-Net recently posted a review by Laura Gifford of Wendy Read Wertz's Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Indiana UP, 2014). Gifford writes:
As author Wendy Read Wertz rightly asserts, political scientist and environmental activist Lynton Keith Caldwell’s remarkable contributions to the development of the modern environmental movement have gone largely unrecognized—and this constitutes a grave omission. Based at Indiana University for most of his career, Caldwell, whose wide-ranging work over a long career in public administration, environmental studies, and environmental policy advocacy produced a bibliography of work some fifty-four pages in length (p. 398), has been referred to by many as the father of interdisciplinary environmental studies. Long before most, Caldwell understood that to craft effective environmental policy, policymakers must be trained to understand and appreciate the ecological world surrounding them. Public administration skills must be joined with scientific and even philosophical understanding of the planet as an integrated whole. Caldwell’s expertise in both public administration and environmental policy brought him into a position of international influence, and he traveled widely both to conduct training and to advocate for his systematic ecological vision. Domestically, his achievements include the creation of an interdisciplinary school of environmental studies at Indiana University and, perhaps most notable, a leading role in drafting the National Environmental Policy Act (NEPA) of 1969.
Wertz has given a signal service in providing the field with a resource through which we can learn about this remarkable scholar. Her coverage of the NEPA, often regarded as the “Magna Carta” of U.S. environmental policy, is deeply insightful—though..., depending on the audience, further editing could have been useful. The field of environmental policy is richer for this addition. Serious scholars of NEPA, Caldwell, or environmental studies will find this volume a wonderful resource. More casual readers should bear in mind that some skimming may be required. 

Friday, December 5, 2014

Environmental justice in India

Environmental Justice recently published Ravi Rajan's "A History of Environmental Justice in India". The abstract:
Indian environmentalism has, for the most part, been about social justice. During the 1970s and 1980s, it was concerned with differential access to natural assets and ecosystem services. The Bhopal Gas Disaster of 1984 raised new issues, pertaining to industrial risk and safety. This article traces the history of environmental justice from the 1970s onward. It describes the perspective of Indira Gandhi, India's Prime Minister from 1967 to 1984, and her attempts at reconciling the environment with development and economic justice; discusses the emergence of a red-green environmentalism during the 1980s and 90s; and explores Bhopal and its implications; before addressing the issues that are front and center today, in the early twenty-first century.
The article has some trenchant quotes from Indira Gandhi's speech, "Man and Environment", at the United Nations Conference on Human Environment at Stockholm in 1972. Here's one:
The extreme forms in which questions of population or environmental pollution are posed, obscure the total view of political, economic and social situations…It is an over-simplification to blame all the world's problems on increasing population. Countries with but a small fraction of the world population consume the bulk of the world's production of minerals, fossil fuels and so on. Thus we see that when it comes to the depletion of natural resources and environmental pollution, the increase of one inhabitant in an affluent country, at his level of living, is equivalent to an increase of many Asian, Africans or Latin Americans at their current material levels of living…All the “isms” of the modern age—even those which in theory disown the private profit principle—assume that man's cardinal interest is acquisition. The profit motive, individual or collectives, seems to overshadow all else. This overriding concern with self and today is the basic cause of the ecological crisis.
Rajan writes:
Indira Gandhi's Stockholm speech was not just a one-off rhetorical flourish in an international forum. It also came to signify the codification of India's approach to development in the second half of the twentieth century. The essence of this approach was that India would strive to harness its natural resources, and invest in modern technology to raise the quality of economic life of the average person. At the same time, efforts would also be made to conserve the environment and preserve its vital forces. Indira Gandhi recognized that there were many shades of gray, and that this grand strategy was easier to talk about rhetorically than implement in practice. For example, she grappled with the consequences of development upon India's tribal peoples and their cultures, only to reconcile the inevitability of development. Again, despite her vehement critique of Western population control advocates, she ended up presiding over an extremely coercive, government-sponsored, forced sterilization program. She lamented the increasing monocultures that resulted with the pursuit of industrial forestry by the government's own forest department but appeared frustrated that her own government did not heed her concerns. In many speeches she repeated the argument in Stockholm that Western industrialism was not a paradigm for countries like India; and articulated the need for balance and alternatives, including, for example, appropriate technology and renewable energy. Yet, she offered no concrete alternatives or pathways for environmental governance.

Thursday, December 4, 2014

At the birth of the Clean Water and Clean Air Acts

Jeff Thaler recently posted "At the Birth of the Clean Water and Clean Air Acts" at Environmental Law Prof Blog. From the post:
2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.
Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 
Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,”  grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted.  Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.”  For that reason, he deliberately included the open-ended phrase “selected air pollution agents And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Sunday, November 30, 2014

Pontin on environmental law-making in Victorian Britain

We recently had the pleasure of hosting Ben Pontin at the Law and Environment Workshop at TAU. Ben presented some of his fascinating, ongoing research on what he terms "the first green industrial revolution", the wave of environmental law-making (both judicial and legislative) that swept Victorian Britain.

Ben's presentation on his book project on the influence on environmental law of Britain's landowning class and its struggle with capitalist industrialists was fascinating. Hopefully we'll hear more about this work, complementing recent work on middle- and working-class environmentalism, soon.

A recent article of Ben's, "Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham’s and Coleridge’s Ideas", published in the Oxford Journal of Legal Studies, sets out some of the intellectual and cultural background, as explained in the abstract:
James Northcote, Portrait of Samuel Taylor Coleridge (1804)
It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning (being instead a piecemeal reaction to the various problems of industrialization as and when these presented themselves). The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped laws as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ (or ‘individualism’) which in turn ceded dominance to ‘collectivism’ (also influenced by Bentham’s ideas). Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law.

Sunday, November 23, 2014

Competing heritages in international environmental law

I recently came across "Theorising International Environmental Law", by Stephen Humphreys and Yoriko Otomo. The abstract:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
Caspar David Friedrich,
The Wanderer above the Mists (1817-18)
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

Sunday, November 16, 2014

The history of capitalism, growth, and environmental limits

The Nov. 24 issue of The Nation has a very interesting, extended review by Timothy Shenk of a number of recent books on the history of capitalism. Given that environmental history is now intensively engaged with the topic of capitalism, that legal historians are also part of the new school, and that the emerging history of environmental law gives a prominent place to the industrial revolution and capitalism, I think this is a central topic for readers of this blog. Shenk writes:
Mostly young, and mostly specializing in the history of the United States, historians of capitalism are one part of a broader revival in political economy. Yet the success enjoyed by this segment of a larger groundswell remains noteworthy—and surprising. Despite the seeming predictability of the subject’s popularity at a time when economic issues have moved to the forefront of public debate, turning capitalism into the central category of historical analysis requires intellectual sacrifices, pushing some topics into the spotlight and relegating others to the shadows. This has not escaped the capitalism cohort’s peers, many of whom fear that the trend would undo advances made by a generation of cultural historians, while leading to even more scholarship of and by white men. Historians of capitalism vigorously protest those charges, but murmurs of discontent have already begun, and they will grow louder if the field continues to thrive.
Shenk is critical of the new trend's focus on economic growth as a corollary of capitalism:

“The First Cotton Gin,” Harper’s Weekly, Dec. 18, 1869
...the new historians of capitalism have a... complicated relationship with economists.... This is nowhere more evident than in the routine conflation of economic growth with capitalism. Though far from the only subject addressed by these historians, economic growth serves a crucial purpose in their accounts, in which capitalism’s ability to satisfy the yearning for more becomes its trump card. An incentive that has stymied would-be revolutionaries for centuries, economic growth unites communities around the pursuit of mutual enrichment, promises social mobility and political stability, and excuses every sacrifice made in its name. Despite its contemporary ubiquity, however, the idea that economic growth is a necessary feature of collective life has a brief history—much briefer than the history of economic growth itself. Not until the middle of the twentieth century was economic growth accepted as a natural and obviously attractive feature of a modern economy, and even then its reign soon came under assault.
Today, confronting the twin pressures of mounting income inequality and escalating concerns about climate change, partisans of economic growth face stronger opposition than at any time in decades. Even if continued growth were desirable, an increasing number of economists are convinced that a decrease from the last century’s norm will be unavoidable in the century ahead. It is a strange tableau: while economists speculate on growth’s decline, a swath of the historical profession, eager to challenge the tyranny of economists, has attempted to make modernity into the story of economic growth—a story that the economists of a prior generation did more than any other group to canonize. Understanding how we arrived at this intellectual crossroads requires a history of its own. 

Friday, November 14, 2014

Nuisance injunctions

The Journal of Environmental Law has a review by Patrick Bishop of Ben Pontin's Nuisance and Environmental Protection - A Study of Nuisance Injunctions in Practice (Lawtext, 2013) (Ben blogged here about the book and his related work last summer.) Bishop writes:
This book’s aim is succinctly stated from the outset, namely to examine: ‘what nuisance law is with reference to what it does in practice, in circumstances where a claimant is awarded an injunction to restrain ongoing pollution’ (p 1). Pontin posits various nomenclatures to describe his methodology, ‘realist’, ‘law-in-action’ or ‘law-in-context’ (p 3), but in essence the approach adopted is contextual.... The intention is to elucidate the socio-economic and environmental impact of nuisance injunctions by the study of materials extraneous to the law reports; in summary this book intends to broaden and enhance our understanding of nuisance by considering ‘what happened next’.
...the introduction provides a discussion of the main theories relating to the effect of the grant of an injunction. The author identifies four hypotheses gleaned from the literature. First, the idea that the grant of an injunction is likely to result in the closure of the defendant’s polluting exercise (the closure theory). Secondly, it will simulate thinking and investment into new modes of business in a manner which eliminates or at least reduces pollution to acceptable (non-actionable) levels (the clean-up theory). Thirdly, there is the possibility that an injunction might force the defendant to relocate its place of business to an alternative area where the nature of the locality is such that the polluting activity would not constitute an actionable nuisance (relocation theory). Finally, the parties might enter into a post injunction bargain, whereby the claimant is paid to move on or waive their legal rights as suggested by Ronald Coase in his ground-breaking work, ‘The Problem of Social Cost’, (Coase theorem). Thus, while it is Pontin’s intention to produce a text of practical significance, useful to potential litigants as well as lawyers and academics, the discussion of each of the four cases is grounded in theory and the outcome of each case study is judged against the four hypotheses identified. 
Across the cases, the emphasis of the contextual discussion varies considerably; the chapter discussing Attorney General v Birmingham Corporation (1858–1895) focuses on the life and career of the claimant, Sir Charles Adderley. While he has faded into relative obscurity, Adderley is described by Pontin as a figure comparable to Rachel Carson and Gro Harlem Brundtland for his contribution to the enactment of the Public Health Act 1875 (p 59). In contrast, the claimant in Halsey v Esso Petroleum Ltd (1961–1972) is given scant attention and instead the background discussion is concentrated on national economic policy. The focus of each chapter is presumably shaped by the available archival material: it is safe to assume that the life of a former parliamentarian and cabinet minister (Adderley) has been recorded in considerably more depth than that of a Fulham van driver (Halsey). Regardless of the differing emphasis of each chapter, the contextual discussion is fascinating and more importantly, it is always enlightening.
The conclusion to each case study returns to the four hypotheses identified in the introduction. Of these, only the closure theory is discredited; the post-injunction investigation reveals that in none of the four cases was the defendant forced out of business. There is evidence, to a greater or lesser extent, to support the clean-up theory (Birmingham and Halsey), the relocation theory (Tipping v St Helens Smelting Co Ltd (1863-1884) and eventually Halsey) and in Farnworth v Manchester Corporation (1928–1930), the parties entered into a Coasian bargain, albeit that an agreement was reached after 40 years of negotiation! Significantly, in each case the injunction was suspended, thereby providing the defendant with the necessary time to find an alternative to outright closure. As Pontin notes: ‘The costs to industry were bearable, and indeed in each case the defendant had a choice as to compliance. Thus, the law afforded them a measure of flexibility’ (p 167).