In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation.
Wednesday, May 10, 2017
The law surrounding the health effects of tobacco are an important precedent for many environmental law issues (see here and here). Now Martin Olszynski, Sharon Mascher, and Meinhard Doelle recently posted "From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability". The abstract:
Thursday, May 4, 2017
A little while back Resources for the Future posted a paper by H. Spencer Banzhaf on the history of an economic idea with major implications for the way environmental law plays out (particularly when cost-benefit analysis is involved), "The Environmental Turn in Natural Resource Economics: John Krutilla and 'Conservation Reconsidered'". The abstract:
Environmentalism in the United States historically has been divided into its utilitarian and preservationist impulses, represented by Gifford Pinchot and John Muir, respectively. Pinchot advocated conservation of natural resources to be used for human purposes; Muir advocated protection from humans, for nature’s own sake. In the first half of the twentieth century, natural resource economics was firmly on Pinchot's side of that schism. That position began to change as the postwar environmental movement gained momentum. In particular, John Krutilla, an economist at Resources for the Future, pushed economics to the point where it could embrace Muir’s vision as well as Pinchot’s. Krutilla argued that if humans preferred a preserved state to a developed one, then such preferences were every bit as "economic"—either way, opportunity costs exist and economic choices must be made.
Tuesday, May 2, 2017
The EPA Alumni Association recently published online Protecting the Environment: A Half Century of Progress. There's an Overview, as well as seven reports on topics such as air pollution, water pollution, toxic substances, and so on. From the introduction:
Over the past half century, our country has made enormous strides improving the environment. The laws that were passed to protect the environment and the public policy decisions that were made have yielded substantial progress. The air is demonstrably cleaner, our waterways are getting cleaner, our drinking water is safer, there are lower levels of exposure to toxic chemicals affecting people and wildlife than would have occurred, toxic waste sites are being cleaned up, and millions of acres of the most scenic and valuable parts of our country’s landscape — parks, wilderness areas, and wildlife refuges — are being protected.
None of this has come easily. There have frequently been significant costs. The decision-making process has often been protracted — sometimes by lengthy litigation. Still the progress is undeniable.
This progress is a result of laws that Congress passed and federal, state, tribal, and local agencies implemented. It is a result of investments of government and private sector dollars and the hard work of many communities, companies, and citizens across the land. They have reduced their environmental footprint and improved the way they do business and live their lives. It is the result of technological and policy innovations and the entrepreneurial spirit built into the DNA of the American people. Most of all, it is the result of Americans’ ongoing support for clean air and water, as we recognize that protection of public health and the environment benefits millions of our fellow citizens.
It is essential to understand this history and the lessons and insights learned if we as a country are to tackle some of today’s formidable challenges, such as:
- the adverse impacts of climate change,
- the effects of nonpoint source (runoff) pollution on our waterways,
- issues raised by changing technology, such as biotechnology and nanotechnology, and
- safeguarding the natural resources that are the foundation of our economic and recreational activities.
Monday, May 1, 2017
Angela Fernandez recently published a review of Robert Deal's The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....)
Sunday, April 30, 2017
Robert Fischman recently posted "Wringing Wonder from the Arid Landscape of Law". The abstract:
Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance of exogenous preference accounting as a means of identifying the public interest. Instead, often employing methods from the humanities, Wilkinson promoted planning as a deliberative, value-shaping process for crafting resource management objectives. His scholarship of the past thirty years redefined the relevant inquiries for public land law scholarship. In particular, he established bioregionalism, time, culture, and wonder as place-building concepts essential for translating justice and equity into public natural resources decisions.
Friday, April 28, 2017
While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.
So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity....
Thursday, April 27, 2017
The new issue of American Historical Review has a review by Christine Corton of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016). Corton writes:
Cavert looks at the early legal debates, many initiated by personal complaints from Elizabeth I and Charles I, aimed at limiting smoky industries located near the Royal Palaces. Charles II shared his father’s dislike of coal smoke, but “measures against it were limited, local, sporadic, and rearguard” (190), not least because Charles was more interested in projects outside the capital city in Windsor or Greenwich. Such preferences marked the failure of earlier attempts to limit smoky industries within London.
The situation changed gradually as local magistrates became more interested in cleaning London’s air to benefit health and to protect buildings. But these early attempts to legislate started a pattern that was to be followed during later centuries as attempts to reduce smoke failed to be passed into law. For many people, a major part of the problem was that the smoke pouring from workshops signified industrial success and full employment, just as smoke issuing from domestic chimneys registered prosperity and cozy domesticity, a relationship only hinted at in Cavert’s book.
Other, wealthier individuals also tried to limit the number of smoke-emitting industries located near their own dwellings. New developments in the west of London, such as Covent Garden, prohibited smoky trades from the outset in order to attract a higher class of resident. Urban settlements created for and by social and political elites partly explain why London’s East End suffered more from the West End’s smoke, as the vapors from the increasing number of domestic dwellings were blown eastward by the prevailing winds.
Wednesday, April 26, 2017
The journal Isis recently published an article by Peter Alagona, "Species Complex: Classification and Conservation in American Environmental History". I heard Peter give a fascinating talk on this at a conference a while back, in which he explained that while scientists don't really have a good definition for what a species is, the law (e.g. the US Endangered Species Act) requires organisms to be classified into species, thus driving this seemingly "scientific" endeavor. The article abstract:
How does the classification of biological organisms shape efforts to conserve them? This essay addresses this key question through the scientific, administrative, and legal histories of steelhead and rainbow trout. Members of the diverse salmon family, these two fish have different life histories and physical appearances, but since the 1930s scientists have considered them the same species. Over the past 150 years, however, their histories diverged. Today, rainbow trout are bred by the millions in hatcheries and are among the world’s most common and widespread fish, while steelhead are listed as threatened or endangered all along the West Coast of the United States. Their remarkable story shows that conservation is not merely a political struggle over things that exist in nature; it is a perennial competition to prove the existence and define the very nature of those things that are the focus of such struggles. Biological taxonomy and classification are central to these debates, as they are to environmental history and the history of science more generally.And some of the legal history in the article:
Tuesday, April 25, 2017
The latest Environmental History has a review by David Rich Lewis of The Size of the Risk: Histories of Multiple Use in the Great Basin by Leisl Carr Childers (U. Oklahoma Press, 2015). Lewis writes:
Leisl Carr Childers’s book appeared at an opportune moment, just as debates over federal management of western lands roiled the national news. The takeover of the Malheur National Wildlife Refuge in Oregon, the armed standoff over grazing rights at Cliven Bundy’s Ranch in Nevada, and the ensuing federal criminal prosecutions highlight the larger critique of federal authority in the West. Two-thirds owned by the federal government and perceived as an unpopulated wasteland that defied Congress’s raft of land disposal acts, the Great Basin is, in Carr Childers’s estimation, the “bellwether for federal land management policy” (p. 7). She explores how “multiple use” emerged in the twentieth century as a way to give the nation’s unclaimed public domain a human purpose, utility, and identity separate from its ecology. This book is not just a primer on land management policies—although it certainly provides outstanding coverage of that—but one deeply rooted in cultural and environmental history, using the tools of oral and public history to trace the intersecting activities of people and their different land uses as these federal policies evolved over time.
Multiple-use management begins with the 1934 Taylor Grazing Act that allowed western ranchers to continue their “accustomed use” of the range without purchase. Having already developed their own water sources and rights, the creation of grazing districts legitimized ranchers’ activities and made the surrounding public range their liminal property. Ranchers reluctantly acceded to the political organization and fees, assuming their accustomed use rights would endure as the activity best suited to these arid lands. At the same time, progressive land managers saw grazing as just one of many possibilities, a stop gap until higher uses (or disposal) of the land occurred. Ranchers, then, assumed an unseen risk in a policy world dictated by different visions of their land and a belief in use for the greater good.
Monday, April 24, 2017
recently compiled a list of books on environmental law recommended by other professors for incoming law students with an interest in the field. The results are all histories in one way or another:
- The favorite: Jonathan Harr's A Civil Action.
- The storytellers: Zyg Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River and Oliver Houck's Taking Back Eden: Eight Environmental Cases that Changed the World.
- Houck's and Richard Lazarus's Environmental Law Stories.
- Lazarus's The Making of Environmental Law.
- Gerald Stern's The Buffalo Creek Disaster.
This is obviously a very American list and one with a very recent focus. Anyone have any other suggestions?