Tuesday, August 25, 2015

Evergreen nuisance

Nuisance seems to be enjoying something of an academic renaissance. Lynda Margaret Collins recently posted "Evergreen? The Environmental Law of Torts", published in the Tort Law Review. The abstract:
The law of toxic torts – those arising from toxic pollution and products – has often been viewed as an application of old doctrine to new problems. While it is true that tort law existed long before the widespread dissemination of toxic chemicals, the common law of nuisance has, since its inception, protected a range of environmental rights and interests. This article will argue that the law of nuisance is a species of environmental law, has always functioned as a form of environmental regulation, and ought to be applied and interpreted as such in the modern era.

Sunday, August 23, 2015

A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:
Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

Thursday, August 20, 2015

The American abortion battle and the environment

Over at Legal History Blog, Mary Ziegler has been blogging about her new book, After Roe
The Lost History of the Abortion Debate (Harvard UP, 2015). Earlier this week she posted on "Population Control, Immigration, and Environmentalism"; here's an excerpt:
In After Roe, the population controllers’ story illuminates the changing relationship between the movements for legal abortion and women’s liberation. From the beginning, women played a crucial role in demanding legal access to abortion. Just the same, the early movement for abortion rights often shied away from women’s-rights arguments, and the relationship between the two movements was often rocky. At a time when women’s liberation remained controversial and women struggled for respect in the workplace, movement pragmatists believed that they would get results faster if they could convince voters and judges that legalizing abortion would have other desirable effects. Arguing that women had a right to abortion said nothing about how everyone else would benefit from legalization. By sometimes focusing on lower welfare costs, environmental benefits and reduced illegitimacy rates, movement members hoped to reach a larger audience.
All of that changed when the population-control movement found itself buried in scandal in the later 1970s. Sterilization abuse at home and abroad persuaded many observers that population policies were irrevocably racist and coercive. As population control became more controversial, feminists gained new influence in what would become the pro-choice movement. Population controllers also began staying away from the abortion issue, seeing it as another controversy that they could ill afford.
It seems that the implosion of population control had ramifications beyond the issues of abortion and family planning. In the 1970s, leading population organizations often advocated for abortion and family planning, environmental protection, and immigration limits. By contrast, organizations that lobby today for immigration limits, like NumbersUSA and the Federation for American Immigration Reform (FAIR), almost never discuss environmental issues. Conversely, groups like the Sierra Club consistently avoid arguments about the environmental damage some tie to overpopulation.

Tuesday, August 18, 2015

Howard Zahniser again

Another review (see also here) of The Wilderness Writings of Howard Zahniser, edited by Mark Harvey (Univeristy of Washington Press, 2014), this time by Michael Kraft in Environmental History. Kraft writes:
The Wilderness Act that established the National Wilderness Preservation System owes much to Zahniser’s organizational and political skills and his remarkable persistence in drafting a series of bills and building sufficient public and political support to survive the legislative gauntlet. Efforts on behalf of the legislation began seriously in 1956, following a successful movement to halt the Echo Park Dam project. In that year, the Wilderness Society proposed the first bill introduced in Congress to create national wilderness areas. In all, members of Congress introduced some sixty-five bills on wilderness areas in the eight years from 1956 through 1964, and they held more than a dozen hearings on the proposals, both in Washington and around the nation. Those hearings generated some sixteen thousand pages of testimony.
The core idea behind this legislation was to develop a coherent national framework for identifying and preserving wilderness areas rather than to persist with a case-by-case reactive battle over particular tracts of land facing imminent threat of development. As admirable as that goal is, inevitably the legislation sparked intense opposition from economic sectors that sought to maintain full access to nearly all public lands. 
(from Denver Public Library)
 According to the Wilderness Society, even as his health was failing, Zahniser tirelessly rewrote many drafts of the Wilderness Act, and he was instrumental in moving the bill along throughout the hearings and legislative deliberations. His writing and his keen political skills helped to overcome efforts to defeat the bill or severely limit its reach that came from timber, mining, and ranching interests, and from a growing outdoor recreation industry that sought greater use of public lands for recreation.
Zahniser died just months before the wilderness bill was signed into law by President Lyndon Johnson in September 1964. With initial protection extended to 9 million acres of public lands, the act now protects over 109 million acres of wilderness. Moreover, its success in Congress set the stage for one of the most productive periods ever for environmental legislation. That ran from the late 1960s through the 1970s when Congress approved nearly all of the nation’s major laws on environmental protection and natural resource conservation. 

Sunday, August 16, 2015

More on Cecil the lion

In last week's post on Cecil I didn't have time to do much more than copy an extract from the NY Times piece, but I think it's also worth trying to unpack the argument made or echoed in the story that "hunting... is part of a complex economy that has so far proven to be the most effective method of conservation".

One argument seems to be that demand for hunting gives government preserves a lucrative source of income, which they can use for conservation:
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
But that's not really an argument for hunting, that's an argument for letting parks sell "excess" animals to those willing to pay for them; not only hunters, but ivory collectors, medicine preparers, zoos, or whomever.

Another argument seems to be that private, for-profit management is better at conserving land and species than government conservation:
In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
It's not clear what the connection between hunting and restoration is here, other than providing an incentive to private ranch owners to restore land and species so they can make money from hunting. Surely government could do the same, without the financial incentive.

In a strange twist, the article then says:
Representative Absalom Willis Robertson of Virginia
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, [conservationists] argue.
The "proceeds of hunting" allocated by the Pittman-Robertson Act (the Wildlife Restoration Act of 1937) to habitat restoration are actually the proceeds of an excise tax on firearms and ammunition. Now, while it may be true that hunting makes such a tax more palatable from a political point of view, there is no inherent connection between government spending tax money on conservation and hunting.

There are, of course, other conservation arguments for allowing hunting, including keeping populations in check to prevent habitat degradation and giving local populations a financial incentive to preserve wildlife and their habitat. But I find the arguments cited in the newspaper article wanting.

Thursday, August 13, 2015

Cecil the lion and legal history

The furor that has arisen around the killing of "Cecil" the black-maned lion has some asking whether restrictions on trophy hunting would do more harm than good. According to a New York Times piece by Norimitsu Onishi, there's a historical angle to this:
Despite intensifying calls to ban or restrict trophy hunting in Africa after the killing of a lion named Cecil in Zimbabwe, most conservation groups, wildlife management experts and African governments support the practice as a way to maintain wildlife. Hunting, they contend, is part of a complex economy that has so far proven to be the most effective method of conservation, not only in Africa but around the world as well.
While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.
And because trophy hunting is legal in private game reserves, the animals end up fetching higher prices than they would in being killed for food or other reasons, conservationists contend. Lion hunts, one of the most lucrative forms of trophy hunting, bring in between $24,000 and $71,000 per outing on average across Africa, according to a 2012 study. In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.
A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, they argue.
“There’s only two places on the earth where wildlife at a large scale has actually increased in the 20th century, and those are North America and southern Africa,” said Rosie Cooney, a zoologist who is the chairwoman of the International Union for Conservation of Nature’s Sustainable Use and Livelihoods Specialist Group. “Both of those models of conservation were built around hunting.”

Tuesday, August 11, 2015

Labor and environmentalism in Canada

Sarnia Chemical Valley, Ontario (by P199)

Last year we noted an article on American labor organizations and environmental regulation; it turns out that around the same time an article was published on a similar phenomenon in Canada; Katrin MacPhee's "Canadian Working-Class Environmentalism, 1965–1985" appeared in last year's Labour/Le Travail. The abstract:
The historiographies of Canadian labour and environmental activism have largely overlooked the existence of a distinctly working-class environmental consciousness in Canada between 1965 and 1985. This worker-oriented environmentalism was expressed in three separate but interrelated strategies. First, labour activists in the 1960s through to the 1980s undertook independent research into the environmental contaminants present in their own workplaces and subsequently released into the larger environment. Second, a number of Canadian unions consistently endeavoured to compel branches of the Canadian government to adopt and enforce strict environmental policies and regulations. Third, Canadian union members exercised the weapons at their disposal – collective bargaining, demonstrations, and strikes – to prevent harm to environmental and human health alike. Through an analysis of these realms of struggle, I outline an environmentalism born of a class analysis of health and disease under capitalism.

Monday, August 10, 2015

Statute consolidation and the forest for the trees

While reading up on statute consolidation and revision in 19th-century Britain, I came across (thanks to Desmond H. Brown, "Abortive Attempts to Codify English Criminal Law") an 1826 speech on the topic by the great reforming Conservative politician, Robert Peel, then Home Secretary. Here's what Peel had to say about criminal offenses regarding trees (a topic written about so elegantly by EP Thompson):
There are not less than twenty statutes relating to the preservation of trees from theft or wilful injury, some properly confined to trees alone, others relating to matters so utterly unconnected with the protection of timber, or with the crime of theft, that I shall be almost suspected of fabricating the title of a bill for the purpose of my argument. It seems to have been discovered about fifty or sixty years since that the various laws which had previously passed with respect to timber, did not afford sufficient protection to hollies, thorns, and quicksets, and to save the trouble of amending the former laws—these neglected shrubs were provided for in an act, which, in taking charge of them, took charge also of the other matters referred to in the following title.
George Patten, Sir Robert Peel, 2nd Bt
"An Act for the better securing the duties of customs upon certain goods removed from the outports and other places to London; for regulating the fees of his majesty's customs in the province of Senegambia in Africa; for allowing to the receivers general of the duties on offices and employments in Scotland a proper compensation; for the better preservation of hollies, thorns, and quicksets in forests, chases, and private grounds, and of trees and underwoods in forests and chases; and for authorizing the exportation of a limited quantity of an inferior sort of barley called bigg from the port of Kirkwall in the island of Orkney."
Now, Sir, what I propose is, not to lessen the security which the law gives to the owner of madder roots, not to throw open the holly or thorn to wanton depredation, but merely to transplant them to a more congenial soil than the province of Senegambia.

Sunday, August 9, 2015

Landscapes of my youth

Sligo Creek

I have fond memories of a hot, humid summer, when I turned 7, collecting tadpoles and algae in the Northwest Branch of the Anacostia. As an even younger child my favorite weekend activity was to ride the miniature train around Pine Lake, and as a teenager my friends and I spent endless hours biking and walking along shady Sligo Creek. I was thus happy to see this under-appreciated corner of the world (the multicultural and middle-class east side of Montgomery County, Maryland is overshadowed by the more glamorous, western neighborhoods of Bethesda, Potomac, and environs) receive some attention in an article, "The Social-Ecological Resilience of an Eastern Urban-Suburban Watershed: The Anacostia River Basin", authored by Craig Arnold and four others. The abstract:
This article develops a new framework -- the institutional-social-ecological dynamics framework (ISED) -- to assess the relationships among institutional change, societal change, and ecological change in evaluating the current and likely future resilience of a small, Eastern, urban-suburban watershed: the Anacostia River watershed in DC and Maryland. A historical case study of the watershed explores the transformations of the watershed across key thresholds, including how legal, governance, and social institutions changed since European colonization and how these changes have affected the ecosystem functioning and social dynamics in the basin. Major drivers of change are identified, including the potential for climate change impact on the watershed and 3 possible futures for the watershed, ranging from hydro-ecological collapse to a greening of the watershed. Finally, watershed governance in the basin is evaluated to determine whether it is adaptive to change. The necessary features of adaptive governance in this particular basin, include watershed-focused governance, restoration and green infrastructure, land use regulation, public engagement, social justice, and monitoring and feedback loops. Law and planning play critical roles in all of these features. Whether the basin will continue to develop and improve its emerging elements of adaptive governance remains to be seen, but several key variables to watch are identified.

Saturday, August 8, 2015

Water law, community, and religion in Utah

Irrigation ditch in front of Brigham Young's houses, Salt Lake City
(Utah Div. of State History)

The tension between capitalism and private property on the one hand, and religion and communal property on the other, is the subject of John Bennion's "Water Law on the Eve of Statehood: Israel Bennion and a Conflict in Vernon, 1893-1896", published in last fall's Utah Historical Quarterly. Without knowing enough about the Utah case in particular, I personally believe the conflict was never as stark as is thought today; prior appropriation was aimed at breaking water monopoly, and communal forms of control--whether through mutual ditch, user-owned corporation, or irrigation district--were and have remained the dominant forms of irrigation organization. Bennion's article confirms that even after the adoption of the appropriation doctrine, communal control persisted. His article begins:
The life of Israel Bennion, a second-generation Utah Mormon, was shaped by his desire to establish a Zion community in an arid land. His journals from 1893 to 1896 describe his efforts to resolve a local conflict over water--a type of conflict common where water is precious and streamflows vary during the year--in Vernon, a Mormon village at the south end of Rush Valley in Utah Territory. Bennion believed water ought to be administered according to the pattern established by the first settlers--through church and community channels, with water theoretically distributed according to the needs of all users. Others in Vernon chafed at communal administration and subscribed to a government-based system of prior appropriation, where water could be bought and sold as if it were private property. This practice became codified into law when Utah became a state. The squabble in Vernon illustrates two ideological positions as Utah shifted from communal to capitalistic management of water.
Several trends combined to create conflicts in Mormon villages in Utah in the 1890s: economic development required stable and permanent sources of water that could be transported to where industries needed it; new settlers, which by now included non-Mormons, hoped to gain water rights not mediated by LDS church authorities; and many residents of Utah Territory sought to become a part of the economic fabric of the United States. Even as the former attitudes toward water eroded, replaced gradually by new beliefs that were manifested in water code, Bennion and many other Mormon water users subverted the new laws because they continued to believe in a community approach to water distribution.