Sunday, April 13, 2014

Labor and environmental law

The last issue of Environmental History has Stefania Barca's survey article, "Laboring the Earth: Transnational Reflections on the Environmental History of Work". Among other things, Barca's rich article raises issues that I think have received too little attention in those working on the historical sources of environmental law, particularly the role of worker safety regulation in setting environmental-legal standards, and the role of the labor movement, and the Left in general, in the development of environmental law. On the first issue, for instance, Barca writes (footnotes omitted):
Another important step in the environmental history of work comes from placing the workplace center stage in our narratives and understanding it as an ecological system. This approach was suggested by Arthur McEvoy in a 1995 article, noting that, from the vantage point of the shop floor, “Ecology points to an analysis of health and safety in terms of the interaction between a number of systems: the worker's body and its maintenance, the productive processes that draw on the worker's energy, and the law and ideology that guide them.” Not only the workplace, but also workers' bodies should thus fully enter environmental history narratives as meta-texts where the political ecology of industrial societies had been written.
An important contribution in that sense was given, again in the United States, by Christopher Sellers's Hazards of the Job, a work that marked a turn in the literature by bridging the history of the workplace with that of environmental science and environmentalism. The book showed how US and European workplaces had been important spaces for knowledge production about human and environmental health and for professional coalitions pushing toward regulation of industrial hazards. Not only has work been extracted from workers' bodies in the course of the industrial era, but so too has knowledge. The branch of medical science known as industrial hygiene developed out of extracting information from workers' bodies and observing their reaction to a variety of risk factors in the course of their work life. This kind of science evolved in Europe and the United States between the last decade of the nineteenth century and the first half of the twentieth, and it reached a wider significance for the environmental movement through Rachel Carson's Silent Spring, which amply relied on research from physicians and industrial hygienists. It was that science that first began to draw the boundaries between normality and abnormality, acceptable and unacceptable limits of exposure and contamination. The environmental movement of the 1960s, according to Sellers, started from the criteria and definitions central to industrial hygiene to attack pollution.

Thursday, April 10, 2014

Climate legacy

This blog normally focuses on the past, but here's an article on how history and law might mitigate future environmental harm. Michael Vandenbergh and Kaitlin Toner have posted "Climate Change: Leveraging Legacy". The abstract:
Drawing on the emerging private governance literature and the results of an empirical study, this Article explores whether legacy concerns can be harnessed to address climate change. The socio-temporal trap is an important barrier to climate change mitigation: the costs of reducing carbon emissions will be incurred by this generation, but most of the benefits will accrue to future generations. Research suggests that social influences — including concerns about legacy — can induce individuals to overcome collective action problems, but individuals know that future generations will not have information about who acted today in ways meriting social sanctions or rewards. Insufficient information may undermine three aspects of legacy-driven behavior: the concern about how one’s actions today will be viewed by future generations, the concern about how these actions will affect the social status of progeny, and the alignment of these actions with moral beliefs regarding the treatment of future generations. Making legacy-related information public today also may influence social sanctions and rewards from contemporaries. The Article examines the nature of legacy concerns, their effects on behavior, and the feasibility of a private legacy registry designed to record individuals’ responses to climate change in ways that will not only be disclosed today, but also will be easily accessible for many generations.

Tuesday, April 8, 2014

Animal rights in Victorian Canada

By way of Canadian Legal History Blog we learned of the publication of "Animal Welfare, Civil Society, and State Policy in Victorian Canada" by Darcy Ingram. The abstract:

Endangered caribou, birds and frogs among animals threatened by Enbridge pipeline: documents
Woodland Caribou
(Handout , Mike Jones for Canadian Boreal Initiative)
This essay analyzes the development of Canada’s animal welfare movement during the nineteenth century. Situating Canada’s experience alongside that of England and the United States, it identifies an enthusiastic but conservative response to animal welfare, which the author argues reflects the high level of dependence among the movement’s upper- and middle-class supporters on animals as resources, sources of labour, and objects of sport. In particular, it focusses on the participation of sportsmen, cattle ranchers, industrialists, foxhunters, veterinarians, and others who recognized in the movement both the material and the ethical benefits that might accrue from the improved treatment of animals. As such, the essay brings to the literature on animal welfare and animal rights a sense of the movement’s economic dimensions, or the ways in which material concerns regarding property and productivity converged with but also limited the animal welfare movement’s ethical parameters. In doing so, it accounts for the near absence in Canada of the more radical agendas that informed the movement’s civil society parameters elsewhere, and in turn the ways in which the moderate vision that informed the nation’s animal welfare non-governmental organizations contributed to an equally moderate response on the part of the state.

Monday, April 7, 2014

Yet more on Arizona v California

Jason A. Robison and Lawrence J. MacDonnell recently posted "Arizona v. California & the Colorado River Compact: Fifty Years Ago, Fifty Years Ahead". The abstract:

Article from L. A. Times; January 24, 1923
L. A. Times, January 24, 1923
(Hoover Online)
Hydrologic conditions in the Colorado River Basin have changed markedly in the fifty-year period since the U.S. Supreme Court announced the seminal Colorado River decision of Arizona v. California in 1963. As projected by the Bureau of Reclamation in its recent Colorado River Basin Water Supply and Demand Study, this pattern of change is anticipated to persist during the next fifty years. Water demands exceeded supplies on average in the basin for the first time in recorded history over the past decade, and this supply-demand imbalance is forecast to widen between now and 2060 absent changes in the status quo. Rooted in concerns about reliance interests and expectations attached to Colorado River water in the Lower Basin, this Article considers the nuanced relationship between Arizona v. California and the Colorado River Compact as this relationship is implicated by the supply-demand imbalance. We initially provide an overview of the Compact’s prominent role in the Arizona v. California litigation — notwithstanding the majority’s ultimate disregard of it in the final decision. We then consider Arizona v. California’s facilitation of water uses and losses in the Lower Basin over the past several decades and essential parameters put into place by the Compact that bear on future efforts to manage these uses and losses. We conclude by advocating for the formulation of a Lower Basin water budget that is informed by the Compact’s basinwide apportionment scheme as a means for navigating the supply-demand imbalance.
For earlier posts on Arizona v. California see here.

Sunday, April 6, 2014

French environmental protection

H-Environment recently posted "Environmental Protection in a Light-Green Country", Chris Pearson's review of Une protection de l'environnement  à la française? (Charles-Francois Mathis & Jean Francois Mouhot eds., Éditions Champ Vallon, 2013), a collection of essays on the history of environmental protection in France and its empire. Pearson writes:

As well as asking what is distinctive about French nature protection and environmentalism, particularly in comparison to Britain, France, Germany, and the United States, many of the chapters engage with Michael Bess’s compelling and influential arguments in The Light-Green Society: Ecology and Technological Modernity in France, 1960-2000 (2003). According to Bess, France has become a “light-green society” in which environmentalist ideas are widespread but shallow; “the result is a social order in which virtually every activity is touched by environmentalist concerns--but modestly, moderately, without upsetting the existing state of things too much.” It is noteworthy how the volume turns towards Bess and other Anglophone environmental historians for inspiration, rather than the approaches outlined by the Annales school or other French historians interested in the human-nature relations, such as Andrée Corvol.

Friday, April 4, 2014

Animals and legal history

Otto Vervaart of the very learned Rechtsgeschiedenis Blog (Legal history with a Dutch view) recently posted "The dog, the cat and the mouse: animals and legal history", on the occasion of a conference on the animal in legal history concluding today in Heidelberg. An excerpt:

Elisabeth Jerichau-Baumann, Die Brüder Grimm (1855)
(Jacob on right)
Animals are no aliens in legal history. Especially in German legal history animals come into view already early. I invite you to look for example at images from medieval bestiaries in Bestiaire du Moyen Âge, a virtual exhibition of the Bibliothèque nationale de France (interface French, English and Spanish), They are portrayed in various ways in the famous illuminated manuscripts of Eike von Repgow’s Sachsenspiegel. In April Dietlinde Munzel-Everling will discuss the animals in the Sachsenspiegel. Jacob Grimm, one of the pioneers of German academic legal history did not only study and publish versions of the medieval animal epic about the fox Renard in his Reinhart Fuchs (Berlin 1834). In an earlier post here I looked in more depth at the various versions of this much liked medieval story. His explanation of German words in his Deutsche Grammatik (first edition Göttingen 1819) often included historical explanations. The word vogelfrei, meaning literally and originally “free as a bird”, was in the context of exiled people and victims of execution who were denied a funeral narrowed to “delivered to the birds”.

Wednesday, April 2, 2014

Nature in history and law

Jill Fraley has posted "The Jurisprudence of Nature", an article that grapples with the history of the concept of "nature" in several (American) doctrinal areas, not only in environmental law, but in areas such as patents and consumer protection. The abstract:

(Nature-Culture Dichotomy)
Informal regulations defining nature, natural and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of human agency. This article seeks to generate a history of the jurisprudence of defining nature. Such a comparative history naturally elucidates the challenges of predictable outcomes when an ostensibly binary system is effectively implemented as a scale. The evidence of inconsistency and confusion provokes an exploration of the literature of history, sociology, and philosophy on the cultural history and pitfalls of defining nature. The article concludes by exploring how the language of property might more efficiently and reliably allow us to navigate the need to legally distinguish manipulations and interventions to protect both public property and private investments not only in patents, but also in consumer products.

Tuesday, April 1, 2014

The environment and the African slave trade

We've noted before (here and here) that the history of slavery, obviously a topic of legal history, has important environmental dimensions, as well. Now, by way of Imperial & Global Forum, we have news of  Emory University’s very impressive Trans-Atlantic Slave Trade Database. At Not Even Past, Henry Wiencek writes that the site

Slave Trade 2
Screenshot of “Wind and ocean currents of the Atlantic basins”
(Emory University, by way of Not Even Past)
reminds readers that the process of moving enslaved Africans across the ocean was as much an environmental process as an economic one. The map, Wind and ocean currents of the Atlantic basins reveals how oceanic forces played a role in determining the travel routes for slave ships. Red and blue lines respectively denote winds and currents swirling between Africa and the Americas, facilitating particular geographic courses better suited for crossing the ocean. These natural forces effectively created two separate “slave-trading systems,” as the site identifies them: one originating in Europe and North America and the other originating in Brazil. Historians have certainly detailed the racism and greed motivating the slave trade, but comparatively little time examining the environmental processes that made it possible. Particular centers of trade emerged along the coasts of Brazil, the Caribbean and West Africa to meet an economic need, but also to harness the currents and winds essential to moving so many men and women such vast distances.  And here too, the visual character of the map makes it easy to see how natural forces worked to shape the historical events.

Monday, March 31, 2014

Dirt lawyering and environmental history

(Adam Wolkoff's third post on teaching the history of law and the environment. The first two are here and here.)

One of the hardest things about switching from the discipline of history to the study of law is learning how to slow down. Undergraduate and graduate history students read hundreds of pages a week, learning to analyze a monograph or article by figuring out its main arguments and reviewing its evidence to see if those claims hold up. They also become adept at synthesizing large bodies of historical literature to better situate the primary and secondary sources they read into those frameworks.

These skills should translate well into law school and to the categorical reasoning it purports to teach. But law school is not a BarBri cram course. Yes, students obsess over their outlines before final exams, trying to fit everything they’ve learned into a logical framework so they can be ready for the absurd fact patterns their professors throw at them. Yet an effective legal outline describes the relational quality of law, rather than a set of black letter certainties. Law students learn that every transaction presents a moment of legal possibility, in which the doctrine accepted as law in the past intersects with the understandings of the parties in the present and their beliefs about what a judge, jury, or the wider community might say in the future.

Contingency makes for compelling history, too, challenging the impulse of many writers and lecturers to produce deterministic narratives about the past. But it also fractures the story, producing histories that can deny the realities of structural power, or give too much authority to specific events or actors. Think about the history books that actually sell at Barnes & Noble: One (month or secretary of state or hockey goal) That Changed the World.

Undergraduate classes teaching law and environmental history can draw on this creative tension to give students new ways of seeing the nature and the built landscape. I’ve always related to the experience that William Cronon describes in his prologue to Nature’s Metropolis of growing up looking out the car window as the landscape shifted from the crowded, polluted, and artificial city to the bucolic countryside. “One of the pleasures of childhood and adolescence,” he writes, “is that one can experience emotions of this sort without worrying too much about their possible contradictions.” By giving students a grounding in the laws and practices underlying these landscapes, we not only dispel the illusory walls between urban and rural, nature and artifice, but help them understand the legal devices that define them.

It’s teaching the art of what real estate practitioners call “dirt lawyering,” helping students see
Air and ground rights
Marcel Breuer's proposed Grand Central tower (1968)
Breuer Papers (Smithsonian)
the principles underlying the landscape and the events that put those rules to the test. Nearly every class I teach seems to begin with drawing that square that property professors call Blackacre. It’s our platform for understanding what novel impositions people brought to the landscape in each era and how they contested them through formal and informal means. For the curious, it’s a skill that helps solve the mysteries of everyday life and its inequalities. “Why are there so many chemical companies and refineries in North Jersey?” my students asked. “Why are there no Whole Foods in Newark?” “Why don’t brownfields get cleaned up?” Even for those who never plan to be activists, teachers, or lawyers, “dirt lawyering” will be there whenever they sign a lease, build a fence, or look out their front windshield.

Sunday, March 30, 2014

A transnational history of asbestos

Perhaps the most litigated environmental issue in US history is harm from asbestos. In the latest issue of Environmental Justice James Rice's "Asbestos and the Globalization of an Occupational and Environmental Hazard, 1960–2011" takes a global view of the subject. The abstract:
Anthophyllite asbestos, Georgia (USGS)
Asbestos is a natural mineral with observable, repeatable effects that have long been observed and repeated. Despite experiential and scientific evidence illustrating its deleterious impact on human health the worldwide production and consumption of asbestos remains substantial. The objective of the present study is to highlight the global decline and resurgence of asbestos over the period 1960–2011. This history is characterized by the predominance of asbestos in the industrialized countries until 1970, decline thereafter, but the precipitous increase of asbestos consumption in the developing countries, particularly the industrializing middle-income nations. In turn, global asbestos consumption in 2011 approximates that observed in 1960; notwithstanding voluminous evidence illustrating it is associated with asbestosis, lung cancer, and mesothelioma. Further, I highlight the rhetoric of denial consistently employed by the industry to generate uncertainty and sustain the demand for asbestos. The conclusion reiterates the need for environmental justice scholars and activists to consider the transnational movement, or risk transference, of recognized occupational and environmental hazards.
I would add that there is room for comparative legal research here, as well: Why has tort law put asbestos companies out of business in the US, but apparently allowed them to flourish in other countries?