Sunday, May 3, 2015

Culture and environmental law

Over at Legal Planet, Dan Farber recently blogged on Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014). Farber writes:
Views on environmental issues are related to broader culture differences.  According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy.  Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility. Jon Cannon’s new book, Environment in the Balance, extends this theory to the Supreme Court, with illuminating results.
Farber goes on to explain how Cannon's book shows how this cultural divide has played out in the US Supreme Court with regard to a couple of legal issues.

From the publisher's website:
Jonathan Z. Cannon demonstrates that from the 1960s onward, the Court’s rulings on such legal issues as federalism, landowners’ rights, standing, and the scope of regulatory authority have reflected deep-seated cultural differences brought out by the mass movement to protect the environment. In the early years, environmentalists won some important victories, such as the Supreme Court’s 1973 decision allowing them to sue against barriers to recycling. But over time the Court has become more skeptical of their claims and more solicitous of values embodied in private property rights, technological mastery and economic growth, and limited government.

Friday, May 1, 2015

The history of the IUCN

My friend Richard Laster recently brought to my attention Barbara Lausche's Weaving a Web of International Law (IUCN/ICEL, 2008, fully available online), a history of the International Union for the Conservation of Nature's Environmental Law Programme.

The book traces the program's origins back to pre-war Switzerland and the Netherlands, but things really picked up just after World War II, including efforts in the 1950s to advance a World Charter for Nature inspired by the Universal Declaration on the Rights of Man. The organization was influential in the creation of several environmental treaties, as well as in advancing domestic legislation around the world.

Though it aims only to tell the story of one organization, it seems to me the larger significance of the book in the historiographical landscape is that it shifts attention from both internal-doctrinal factors and (domestic) external-social/political/cultural ones that are usually marshaled to explain the evolution of environmental law, (back) to the realm of institutions and especially international experts, and their role in shaping environmental law across jurisdictions and on a global scale.

Thursday, April 30, 2015

Honorable mention to Pravilova's "A Public Empire"

The Law and Society Association recently gave an honorable mention in the category of the J. Willard Hurst Award for the best book in socio-legal history to Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014). From the publisher's description:
Many scholars have attributed Russia’s long-term development problems to a failure to advance property rights for the modern age and blamed Russian intellectuals for their indifference to the issues of ownership. A Public Empire refutes this widely shared conventional wisdom and analyzes the emergence of Russian property regimes from the time of Catherine the Great through World War I and the revolutions of 1917. Most importantly, A Public Empire shows the emergence of the new practices of owning “public things” in imperial Russia and the attempts of Russian intellectuals to reconcile the security of property with the ideals of the common good.
The book analyzes how the belief that certain objects—rivers, forests, minerals, historical monuments, icons, and Russian literary classics—should accede to some kind of public status developed in Russia in the mid-nineteenth century. Professional experts and liberal politicians advocated for a property reform that aimed at exempting public things from private ownership, while the tsars and the imperial government employed the rhetoric of protecting the sanctity of private property and resisted attempts at its limitation.
Exploring the Russian ways of thinking about property, A Public Empire looks at problems of state reform and the formation of civil society, which, as the book argues, should be rethought as a process of constructing “the public” through the reform of property rights.
I hope we'll hear more about this book soon.

Tuesday, April 28, 2015

Call for Papers: Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries


The call for papers for an international symposium on "Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries, 18th-20th centuries", to be held 21-22 May 2015 in √Čvora, Portugal, has been extended to May 3. From the call:
At the end of the 19th c, within the context of capitalist firm competition and the dynamics generated by technological advance, the creation of global markets for minerals and metals promoted intensive extractive and industrial large scale operations which had a major impact not only on the quality of the water from springs, rivers and seas, but also on air and soils. New industrial landscapes were created in the process under the enthusiasm fostered by the ideologies of progress, nationalism and militarism. While environmental conflicts are today one of the dominant forms of social contention, they remained almost silenced in the past. This scientific meeting addresses the role of those conflicts in the shaping of strategies in Mining and Metallurgical Industries (MMI) and in the emergent knowledge of environmental management and governance that has become embedded in the European legal and institutional framework. From this standpoint, other issues should be also addressed, such as:
• How MMI responded to emergent environmental issues raised by institutions and the civil society?
• How risk and other environmental related concepts became under consideration in business strategies and, especially, what were the scientific and technological initiatives adopted?
• How environmental conflicts varied across time and cultures (organization, components, social influence, etc)?
The full call and more details are here.

Wednesday, April 22, 2015

The public trust doctrine in the UK Supreme Court

The Supreme Court of the United Kingdom recently decided a case, R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council, that includes quite a bit of discussion of the public trust doctrine and its history. The doctrine, which, in its basic form, recognizes certain rights of public property in certain waters and beaches, has become a staple of environmental law teaching and scholarship in recent decades, thanks in large part to its revival and adaptation by Joseph Sax.

A bathing machine, of the sort at issue in Blundell v Catterall
While many courts and writers are fond of tracing the doctrine's origins to ancient Roman law and English common law, close followers of the topic will know that the leading English precedent on the topic is the 1821 ruling of the King's Bench in Blundell v Catterall, in which the majority actually ruled against recognition of public rights of access to a private beach (though Justice Best's dissent is probably more often quoted). Now comes the Supreme Court of the UK and examines the history of the doctrine in English law and elsewhere in detail--see, in particular, paragraphs 32-51 and 106-136.

Some of my favorite parts of Lord Carnwath's concurrence:
106. At least since Brinckman v Matley [1904] 2 Ch 313, the decision of the Court of King’s Bench in Blundell v Catterall (1821) 5 B & Ald 268 has been taken as establishing at Court of Appeal level that under English law the public has no general right to go onto the foreshore for the purpose of bathing or other recreation.... Not even the strong dissenting judgment of Best J in the earlier case, the advocacy of a future Lord Chancellor (Buckmaster KC), nor the criticism of three textbook writers cited by him (p 320), were sufficient to persuade the court to revisit the issue, or even to call on opposing counsel. The members of the court were unanimous in their praise for the model judgment of Holroyd J, regarded it seems as “one of the finest examples” of how a judgment should be expressed (p 323)....
107. No doubt because judicial fashions have changed, I confess that I do not find the enthusiasm of the Court of Appeal for the judgment of Holroyd J altogether easy to share. Its erudite analysis of extracts from Justinian, Bracton, and Hale, and of obscure exchanges between the court and counsel in some early English cases, makes rather heavy reading to modern eyes.

Tuesday, April 21, 2015

Wildlife conservation law in Quebec

H-Environment recently posted Sean Kheraj's review of Darcy Ingram's Wildlife, Conservation, and Conflict in Quebec, 1840-1914 (UBC Press, 2013). Some excerpts:
Wildlife conservation in Quebec was distinct from the rest of Canada not because of the province’s French Canadian heritage, but because of its British colonial heritage. This is the unexpected twist to Darcy Ingram’s insightful study of wildlife conservation advocacy and policy in Quebec...
Ingram locates the origins of wildlife conservation in Quebec among an elite group of British and British American men whose social and political outlooks were informed by conservative, patrician values. These values, Ingram argues, were inherited from British (specifically Scottish) conservation traditions and practices.
*****
In the first part of this book, Ingram examines the patrician outlook that drove the development of a unique system of private hunting and fishing leases that partially emulated aristocratic estates in Scotland. Interestingly, Ingram reveals that Quebec’s elite patricians did not seek to establish an exclusive monopoly over fish and wildlife resources solely for the purposes of sport. Instead, their outlook on wildlife incorporated a desire to improve environmental conditions so as to foster wildlife for a range of uses, including subsistence. They were also relatively sensitive to continued Aboriginal use of wild animals. Conservation under this model would be achieved through the private interests and leadership of Quebec’s anglophone elite. In the 1840s, prominent British and British American elites organized local conservation societies and associations in Montreal and Quebec that then lobbied the colonial legislature to establish leasing privileges to promote the conservation of fish and other wildlife resources. The subsequent leasehold system resulted in a series of private estates held by some of the most politically powerful elites in Quebec, including an exclusive lease reserved for Canada’s governors general. 

Thursday, April 16, 2015

Environmental legislation in 1860s Australia

Last summer we posted on articles on water law and pollution law in colonial Victoria. According to Tristan Orgill, "The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria", the law at the time actually dealt with an even wider range of environmental issues. The abstract:
Between 1851 to 1860, an unprecedented ‘gold rush’ wrought a profound transformation upon the fledgling state of Victoria. By 1860, Victoria’s population had increased sevenfold and the colony was attracting ‘worldwide fame’ as one of Britain’s wealthiest settlements. However, this colonial prosperity came at a high environmental cost. Whether by land clearing for agriculture or mining, industrial and urban pollution, or the over exploitation of game, fish and timber - colonial progress often meant, as one colonist observed, that ‘every feature of nature [was] annihilated’. Almost all historians have argued that the environmental degradation of Victoria was an inevitable consequence of the widespread antipathy (or antagonism) of Victorians to what they perceived as a foreign and ugly environment. Whilst some colonists called for restraint, ‘the colonial project - to master, develop, and prosper - overwhelmed the faint cry of such sentiments’. 
ST Gill, Diggings in the Mount Alexander district of Victoria in 1852
This paper will contend that this dominant historical narrative is specious and inconsistent with surviving primary source material. Not only was environmental concern prevalent in Victorian society, popular concern persuaded Parliament to enact considerable environmental legislation throughout the 1860s. Historians have either blithely dismissed or simply ignored the history of this legislation. This is perplexing given that the development of law provides a critical insight into Victorian society’s commitment to - and reasons for - addressing environmental concerns. Thus, this paper examines the three most significant environmental regimes enacted throughout the 1860s: namely, the game, fish and timber statutes.
It will be shown that these regimes were primarily justified by utilitarian conservation arguments and, additionally, that aesthetic and moral considerations were vital. The existence and influence of a ‘proto-preservationist philosophy’, which underpinned the enactment of these statutes, disproves the orthodox historical narrative that colonial society was generally apathetic to environmental degradation and that colonists who voiced concerns were ‘insignificant’.

Wednesday, April 15, 2015

Tuesday, April 14, 2015

The history of procedure and environmental law

As my colleague Issi Rosen-Zvi often reminds us, the issue of lawyer's fees, and procedural rules more generally, have major effects on substantive outcomes. History, it seems, bears him out, as over at Legal Planet Jonathan Zasloff recently posted on the connection between developments in civil procedure and the famous Mono Lake Case:
How was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power?
At one level, the answer is obvious: it found a Sugar Daddy, in this case, the international law firm of Morrison & Foerster, which according to John Hart’s fine book Storm Over Mono, agreed to contribute $250,000 of attorney time to the case — nearly $1 million in today’s money. But this, of course, begs the question of why MoFo agreed to put in that much money. (And of course, the case wound up costing far more).... 
I am still looking into this, but I cannot help but suspect that California Code of Civil Procedure 1021.5 has something to do with it. That provision is familiar to most California lawyers: it allows fee-shifting “in any action which has resulted in the enforcement of an important right affecting the public interest.”
That, at any rate, would explain things: MoFo didn’t take the case pro bono: it took it on contingency, gambling that it would get its attorneys’ fees if it prevailed. It might even get a “multiplier,” i.e. more than its attorneys fees, if the case was especially hard, which it was.... 
And when did 1021.5 come into effect? January 1, 1978, the year after it was enacted (as is standard under state law), and just when the Mono Lake Committee was about to give up. Just in time.
...the case is seen as coming out of the environmental movement of the late 60’s and early 70’s, but if MoFo had been approached even five years earlier, the whole thing might have collapsed.

Sunday, April 12, 2015

Morag-Levine on the history of precaution

Noga Morag-Levine, who participated in the roundtable at the recent ASEH conference on what environmental history and legal history can learn from each other, also recently posted her American Journal of Comparative Law review essay on the history of precaution (following on a condensed, blog, version in 2013.) The abstract:
The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books — The Politics of Precaution by David Vogel — and The Reality of Precaution, edited by Jonathan Wiener with several others — have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.
Edwin Chadwick, who brought the Continental
precautionary approach to Victorian England
This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper’s starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state’s autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative law traditions respectively associated with Anglo-American common law and Continental civil law.