Friday, December 2, 2016

Lessons from environmental history

I recently came across Erik Podhora's "Lessons for Climate Change Reform from Environmental History: 19th Century Wildlife Protection and the 20th Century Environmental Movement", published in last year's Journal of Environmental Law and Litigation. The abstract:
The prospect of national climate change legislation currently seems dim, but protective legislation for the natural environment has not always been out of reach. State wildlife laws of the 19th century demonstrated that concerted action could persuade state legislatures to shift away from the fundamental paradigm of unregulated hunting when the declining populations of many species caused public alarm. Nearly a century later, in 1969, several high-profile incidences of acute pollution occurred, and a widespread environmental movement blossomed that prompted a previously indifferent President to champion the call for environmental policy. If this pattern held true, unusually strong storms or wildfires of increasing frequency and intensity in recent years should have generated public support for legislation to combat climate change. However, climate change reformers in the 21st century have not been able to convince Congress to seriously consider remedial legislation. This Article explores the factors that contributed to the success of the 19th century state wildlife movement and the 20th century environmental movement in order to better understand what climate change reform efforts may be missing.

Sunday, November 27, 2016

Legal history of the Scheldt

Fragment of an engraving by F. Galle, ca 1580
(Bergen op Zoom in Pictures)
Otto Vervaart's Rechtsgeschiedenis Blog recently posted on "The Schelde river, a disputed boundary", examining, among other sites, the Scheldt River Collection of the Peace Palace Library. Vervaart gives some background (the river is called Schelde in Dutch and Escaut in French):
The navigation on the Schelde had been already an issue long before the Belgian independence in 1839. During the Dutch Revolt in the sixteenth century the blockade of the Schelde massively damaged the trade to and from Antwerp, and prompted many Flemish merchants to go to the North. Amsterdam’s growth in economic power around 1600 is to a substantial degree due to an influx of merchants from Flanders, their talents and networks. However, this period does not come into view in the digital collection. The Peace Palace Library has digitized books from its own collection. Apparently fifteen works from 1784 and 1785 are the earliest available. Among these works is a treatise by someone more famous for his role in French history. Honoré Gabriel de Riqueti, comte de Mirabeau (1749-1791) published a treatise with the title Doutes sur la liberté de l’Escaut, réclamée par l’empereur; sur les causes & sur les conséquences probables de cette réclamation (London 1785). It was this work that brought Mirabeau to the attention of the general public in France. The Peace Palace Library digitized also a contemporary Dutch translation of this treatise. Some of the digitized publications discuss the role of the Schelde in Dutch and Belgian history starting with the medieval period, for example Charles Terlinden’s study ‘The History of the Scheldt’, History 4 (1920) 185-197, 5 (1921) 1-10, which sparked immediately a reaction from a Dutch historian, F. de Bas, ‘Another version of the Scheldt history’, History 5 (1921) 159-170.
The rivalry between the Dutch North and the Flemish South has not been the only cause for conflicts. The Dutch neutrality during the First World War made matters even more acute. After the First World War the attempts at a new treaty about the Schelde and the proposals to build a canal between the Schelde and the Rhine-Meuse estuary failed in the end in 1927 after heated national debates. More than one hundred publications in the digital collection bear witness to this prolonged affair. Legal historians, too, looked at the Scheldt question. The digital collection contains two publications by Ernest Nys, ‘Les fleuves internationaux traversant plusieurs territoires : l’Escaut en droit des gens’, Revue de droit international et de législation comparée 5 (1903) 517-537 (1903), and L’Escaut en temps de guerre (Brussels 1910). In 1940 Eduard Maurits Meijers published his study ‘Des graven stroom’, Mededelingen van de Koninklijke Nederlandse Akademie der Wetenschappen, Afdeling Letterkunde, new series, 3/4, pp. 103-205, in which he traced the medieval claims and jurisdictions on the several branches of the Schelde. Meijers thoughtfully added transcriptions of the main documents he discussed. In 1953 Chris van der Klaauw, between 1977 and 1981 the Dutch minister of foreign affairs, defended his Ph.D. thesis in history about the interwar relations between the Netherlands and Belgium [Politieke betrekkingen tussen Nederland en België, 1919-1939 (Leiden 1953)].
'Townscape' of BoZ (detail) by Samuel de Swaef and J. ab Heede, Atlas van Stolk (1634)
(Bergen op Zoom in Pictures)

Friday, November 25, 2016

Administrative expertise in the UK

The latest Journal of Environmental Law has a review essay by Elizabeth Fisher, "The Enigma of Expertise", reviewing Knowledge, Policy and Expertise: The UK Royal Commission on Environmental Pollution 1970–2011, by Susan Owens (OUP, 2015). Some of the historical background in the article (with footnotes omitted and links added):
Within UK administrative law and public administration there has always been scepticism of attempts at bureaucratic rationalisation. Public administration in most jurisdictions grew in a haphazard fashion but in the UK particularly so. The reasons for this are many and overlapping. The lack of a vigorous doctrine of separation of powers and thus a fused constitutional and administrative law is one factor. The failed ‘Prussian bureaucratic’ experiments of Edwin Chadwick in the 19th century another. As is the ideal of the generalist civil service as promoted by the Northcote Trevelyan Report in 1870. Administrative law took far longer in the UK to be recognised and when it did the American administrative lawyer, Kenneth Culp Davis accused British judges of being too much like ‘bricklayers’ and not enough like ‘architects’. He also noted that ‘the essence of the administrative process is missing from the literature of English administrative law’. It is also useful to remember that Lord Diplock’s articulation of the three grounds of judicial review was an act of codification not rationalisation. As Kamenka has put it, the common law also has traditionally had an ‘anti-administrative character’....
Throughout the 19th century, there was a ‘piecemeal accumulation of expertise’ in British government. By the 1920s, the need for expert public administration was becoming obvious. A major catalyst for this need was World War I as it made clear the nexus between knowledge and power. Recognising that nexus did not however result in a rose tinted understanding of expertise. ‘The expert is a notoriously bad judge’ ECS Wade wrote in 1930 (judges on the contrary were of course good at judging). Lord Hewart in 1930 wrote that expert officials were ‘naturally and necessarily hidden and anonymous’ so that they could not be examined or ‘brought to book’. Zimmern noted that ‘the solution worked out by Expert Committees are not edicts imposed by an omniscient dictatorship’.

Sunday, November 20, 2016

Bhopal Digital Archive

Mitra Sharafi recently posted on the digital archive created by her and others at the University of Wisconsin on the 1984 Bhopal disaster in which lethal gas leaked from the local Union Carbide plant and killed 15,000 to 25,000 people. The archive is centered on documents collected by legal scholar Marc Galanter, who was involved in civil litigation against the company. The archive explains the basic legal chronology:
Bhopal is frequently referred to as the world’s worst industrial disaster. The leak followed a period of reduced maintenance and neglect of safety systems at the plant.
The arrival in Bhopal of American lawyers led to the filing of hundreds of lawsuits against the American parent company, Union Carbide Corporation (UCC), in the United States. The Indian Parliament passed the Bhopal Act, designating the Government of India (GOI) as the exclusive representative of the victims. The GOI brought filed suit in US federal court on April 8, 1985. The many American cases were consolidated for pre-trial proceedings in the federal district court for the Southern District of New York. The case was assigned (by lot) to Judge John F. Keenan, at the time a relatively junior judge. Union Carbide moved to dismiss on grounds of forum non conveniens—i.e., that the case could more appropriately be tried in India.
The Court allowed discovery on matters limited to the question of where the case should proceed. The parties submitted briefs and supporting material and presented oral arguments. Judge Keenan granted the defendant’s motion to dismiss subject to some conditions, which Union Carbide accepted after modification by the Court of Appeals.
The case was re-filed in India in the District Court in Bhopal on Sep. 5, 1986. On Dec. 17, 1987, that court ordered preliminary compensation of Rs. 350 crores (then equal to about 25 million dollars). Union Carbide appealed to the High Court of Madhya Pradesh, which affirmed the order for preliminary relief, with modifications, reducing the amount of Rs. 250 crores. UCC then appealed to the Supreme Court of India. In February 1987, while the appeal was pending in the Supreme Court, UCC and the GOI reached a settlement, under which UCC paid the Government of India $480 million in dollars.
The GOI set up tribunals to determine the compensation to be paid to claimants. The tribunal process extended over more than 15 years. Because the value of the Indian rupee fell from roughly 13 to the dollar in 1987 to 45 to the dollar in 2004, the GOI ended up having a considerable residue (over $300 million) after paying the victims. In 2004 the Supreme Court ordered the remaining funds to be paid out pro rata to all those who had been compensated.
Many in India remain convinced that the culprits were let off too easily in light of the comparatively low damages payment and the absence of UCC’s chairman, Warren Anderson, from the trial that convicted his Indian subordinates.

Sunday, November 6, 2016

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):
Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)
At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

Sunday, October 30, 2016

A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):
A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))
Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:
To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.
And on June 18, Lord Faulks answered:
The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.
At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Friday, October 28, 2016

Environmental history in oral arguments

Brian Tomasovic recently posted the abstract for his article "Soundscape History and Environmental Law in the Supreme Court", published last year in Environmental Law. The abstract:
Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.
Tomasovic explains that argument audio hosted on the Supreme Court’s website presently begins with the October 2010 Term, while recordings going back to 1955 are at the Oyez website. The article's Appendix B "compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake", and also "labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case".

Is this resource important? Tomasovic thinks so; here are some highlights from my perspective (footnotes omitted). I'll start with his treatment of environmental history as reflected in the recordings:

Monday, October 24, 2016

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)
Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:
At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”
Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:
The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying.... 

Monday, October 17, 2016

Environmental regulation in colonial Zimbabwe

The latest Environment and History has an article by Muchaparara Musemwa, "Sic utere tuo ut alienam non laedas. From Wanton Destruction of Timber Forests to Environmentalism: The Rise of Colonial Environmental and 'Sustainability' Practices in Colonial Zimbabwe, 1938-1961". The abstract:
This article examines the roots of colonial Zimbabwe’s culture of environmentalism – described, here, as increasing social awareness of the rapid deterioration of the environment and the pressing need to take decisive action to counteract it. It argues that only a one-sided story – namely colonial conservationist discourses and practices especially as they pertained to African reserves in colonial Zimbabwe and other parts of Southern and Eastern Africa – has been the object of myriad historical analyses. Yet, there is a corresponding story that seems to have fallen between the seams of history as it is rarely articulated in Zimbabwean historiography in a systematic and comprehensive way, i.e. the origins of a colonial environmentalism – one focused more on reinforcing white settlers’ sustainable uses of natural resources and less on Africans. It chronicles how the once verdant landscapes of colonial Zimbabwe were transformed into near waste in the first four decades of colonial occupation from 1890; highlights how the diverse voices of environmental concern that appeared at the time compelled the colonial Zimbabwean state finally to institute the Commission of Inquiry into the Preservation of the Natural Resources of the Colony of Southern Rhodesia in 1938; and examines how this Commission’s recommendations became the basis for the establishment of a number of institutional regulatory systems to initiate an efficiency-oriented approach to the management of the colony’s natural resources. It highlights how the notion of ‘sustainability’ was infused into the Commission’s Report and became such a powerful trope that it laid the basis for subsequent institutional and legal environmental resource management in colonial Zimbabwe, surviving intact into the first two decades of postcolonial rule. The article further explores how the farmer–miner conflict unfolded beyond the McIlwaine Commission and how the Natural Resources Board finally led to a successful resolution of the conflict in 1961. The McIlwaine Commission Report attests to rising social and environmental concern at the ongoing ecological decline of the colony’s resources, resulting in the realisation of a resolute response in order to guarantee the sustainability and welfare of white settler society.
L. F. Hughes, Back Page, Umtali and the Eastern Districts of Southern Rhodesia (1953)

Wednesday, October 12, 2016

A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action
A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.

The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)

Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):
The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.
To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.
But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.