Saturday, October 18, 2014

In Memoriam: Frank Grad

Columbia Law School notes the recent passing of Professor Emeritus Frank Grad. Some excerpts from the press release:
Born in Austria in 1924, Grad immigrated to the United States in 1939 to escape Nazism. He and his sister left Austria on the Kindertransport, and Grad lived with a family in England before coming to the U.S. 
In 1959, Grad was given the task of revising the New York City Health Code, including provisions relating to water pollution and its prevention, control of sewage fallouts, and the control of toxic substances and poisons. The code also included numerous provisions relating to the protection of food and water supplies against contamination by pollutants.
In 1969, Grad became director of the Legislative Drafting Research Fund and a full-time faculty member. He chose to take on classes in an emerging area in which his expertise would prove invaluable: environmental law. Grad was the first to teach the subject at Columbia Law School and, when he couldn’t find any materials to teach with, he wrote one of the earliest books on the subject. 
“Frank Grad was one of the true pioneers in the study and teaching of environmental law,” said Michael B. Gerrard, the Andrew Sabin Professor of Professional Practice and director of the Law School’s Sabin Center for Climate Change Law. “The field's seminal year was 1970 (when President Nixon created the EPA and signed the first major laws of the modern era), and Frank was out of the box with one of the first casebooks in 1971, and then one of the first treatises in 1973.  He trained generations of environmental lawyers.”
Grad updated his eight-volume Treatise on Environmental Law twice a year.
According to a December 20, 1969, article in The New York Times, “Environmental Law is Attracting Students,” 69 students applied to be in Grad’s 18-seat first course. “The school, in an unusual relaxation of its rules, will permit 30 students to take the course,” the Times wrote.

Tuesday, October 14, 2014

Stone Age environmental law

Environmentalists are sometimes accused of wanting to return to the Stone Age. Here's a fascinating, recently posted article--Ryan Soa's "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene"--that argues that the problem with modern American environmental law is precisely that it neglects the coping strategies of hunter-gatherer societies in favor of patterns of behavior adopted in the wake of the neolithic revolution. From the article's conclusion:
Hundreds of thousands of years of hunter-gatherers survived, and in some ways evolved as a result of, extreme droughts, floods, and wildfires. They did so despite extraordinary ecological changes they could not dream of controlling, adapting themselves to the new realities of their environment. Some approaches worked, and inevitably some did not. But a hominid record that stretches millions of years reveals a model for resilience to extreme natural events like droughts, floods, and wildfires. First and foremost, they were mobile. For some hunter-gatherer societies this meant the entire community migrated to a more favorable environment; for others, the relocations were temporary. Whatever the extent, societies that prioritized mobility were successful in removing people and assets from harm’s way. Second, their approaches were diversified. Societies were adept at recognizing and exploiting many potential food sources and ecosystem services. Mobility and diversification, in turn, were made possible by a sophisticated awareness of the surrounding environment. Ecological changes and opportunities were recognized and effectively integrated into community decision-making processes. These characteristics of the Paleolithic hunter-gatherer – mobility, diversification, and awareness – allowed societies to survive for thousands if not millions of years. 
Neolithic tools
The Neolithic Revolution brought a fundamental shift to the human lifestyle. Agricultural systems require settlement and management of a static area. When a drought, flood, or wildfire strikes the region, escape to more favorable conditions is not possible. The vulnerabilities of this approach are exacerbated by reliance on one or a limited number of short-sighted resilience strategies, such as cutting down a forest or building a dam. What mitigation options remain are not capitalized on due to a low level of awareness of the surrounding environment and its feedbacks, or an inability to effectively translate awareness into meaningful policy change. These characteristics of vulnerable civilizations are apparent in the legal frameworks of the United States. The totality of drought, flood, and wildfire laws and policies conform to three basic approaches: 1) controlling nature; 2) spreading risk across society; and 3) providing ex-post disaster relief. The first approach utilizes impressive feats of human engineering and ingenuity, but inadequately considers the consequences of modifying natural systems. Relying on infrastructure is equally problematic because built structures are prone to deteriorate and fail.Spreading risks across society by subsidizing insurance premiums for people and property in high-risk areas is compassionate and may promote other policy interests, but for purposes of building resilience to extreme natural events is not productive, and may in fact be counterproductive. The current trend of distributing generous disaster relief packages to affected communities is similarly compassionate but ineffectual in building resilience. Taken together the paradigm of disaster law in the United States boils down to strategies that control nature or, should that fail, reactively soften the blow.
...It is unlikely that the highly populated agricultural societies of the Anthropocene will return to a nomadic hunting and gathering lifestyle. Nonetheless, millions of years of human evolution and adaptation to droughts, floods, and wildfires tells a success story that has long been overlooked. For the sake of our collective resilience to extreme events, we would be wise to take another look. Despite the contrast in lifestyles, droughts, floods, and wildfires have been a constant feature of humans in their environment. The resilience model of the past provides a paleo perspective on contemporary legal frameworks, and can helpfully inform the future.

Monday, October 13, 2014

More on the Wilderness Act

Actually, more from Environmental Law's special issue on the Wilderness Act: John Leshy has posted "Legal Wilderness: Its Past and Some Speculations on Its Future". The abstract:
This Article considers the past and possible future of the effort to provide legal protection for tracts of federal lands under the umbrella of the Wilderness Act of 1964. Because legal protection comes through the political process, the task requires examining the politics of wilderness. Therefore, the Article spends considerable time looking at the political forces that led up to enactment of the Wilderness Act of 1964, and have shaped its implementation in the half-century that has followed. It explores the political compromises contained in the Wilderness Act, and how these have worked out in practice. It discusses how the legal meaning of wilderness has been shaped since enactment, and how successful the idea of legally protecting wild values has been. It also puts the Wilderness Act in the broader context of changes in federal land management policy since 1964. For example, whereas in 1964 wilderness designation was just about the only reasonably secure way to protect land from road building and other forms of intensive development, today many legal tools are available to accomplish it. Finally, the Article discusses current and likely future challenges to wilderness protection, some but not all of which stem from a destabilizing climate. The cumulative effect of these and other factors identified in the paper has already slowed down expansion of the National Wilderness Preservation System, and will likely continue to do so. Nevertheless, the System stands as a monumental achievement, expressing some of the more high-minded objectives of American political culture.
Eagle Cap Wilderness, Oregon (Lake Wallpapers)

Sunday, October 12, 2014

Environmental-policy-relevant history

I suspect we'll be hearing a lot in the coming months about The History Manifesto by David Armitage and Jo Guldi (Cambridge UP, forthcoming, available already for free on line). In the meantime Armitage gives us a preview in The Guardian, including this on history and current environmental policy (links added):
Debates on climate change also reflect the advantages and the limitations of historical perspective. On the one hand, Barack Obama’s former undersecretary for science in the US energy department, Steven Koonin, has recently argued for humility about future policy because we lack long-run data about the role of the oceans in climate change: “Precise, comprehensive observations of the oceans are available only for the past few decades.” On the other, historical economist Anil Markandya has shown that environmental regulation in 19th-century Britain did not have “any serious impact on GDP per capita”, overturning the orthodoxy that there is a necessary trade-off between growth and environmental protection. Meanwhile, French historians Sabine Barles and Gilles Billen have examined Paris’s “nitrogen footprint” to show how urban managers there invented sustainable practices for recycling waste in large cities: these are precedents relevant to practice and policy today.

UK sulfur emissions/capita, real GDP/capita, selected air pollution regulations
(Markandya et al, Envtl & Resource Econ (2006) 35: 221-257)

Saturday, October 11, 2014

The American Right and environmental politics

The latest American Historical Review has a review by James Morton Turner of Brian Allen Drake's Loving Nature, Fearing the State: Environmentalism and Antigovernment Politics before Reagan (U. Washington Press, 2013). Turner writes:
Two contributions distinguish this book. First, it considers how conservatives of many stripes—from traditionalists to libertarians—both reacted and contributed to environmental discourse in the 1960s, 1970s, and 1980s. Second, in asking these questions, it accomplishes something that few other histories of modern environmentalism have: it considers how environmental reformers have engaged fundamental questions of American political philosophy, such as “ideas about the individual, government, and the proper relationship between the two.” As Drake explains, these are “classic questions of American political philosophy” (p. 7).
In considering these issues, Drake offers fascinating rereadings of a familiar cast of characters, from Henry David Thoreau to Ronald Reagan. But the book focuses on four well-researched and compellingly narrated case studies: Barry Goldwater's deep love of the western wild lands and his punctuated political support for environmental reform; Edward Abbey's libertarian commitment to wilderness as a necessary refuge from the modern state and capitalist economy; conservative anti-fluoridation activists' opposition to the role of the state in polluting people's bodies in the name of public health; and a free-market approach to environmental reform grounded in the market, property rights, and tort law spearheaded by groups such as the Property and Environment Resource Center. What the protagonists in all of these case studies shared were suspicions of the role of the state in public life and an abiding concern for the environment and the natural world.
It is those concerns that defined Barry Goldwater's conflicted engagement with modern environmentalism. Drake explains how the standard-bearer of 1960s conservatism got his political start as an outdoorsman and nature photographer, traveling Arizona to share his passion for the Colorado River and the state's wild landscapes. Although Goldwater supported federal reclamation projects and opposed the Wilderness Act in the 1960s, Drake carefully tracks Goldwater's growing concerns for the environment in the 1970s, including issues such as pollution, overpopulation, and ecological decline. Despite Goldwater's commitment to the market economy and respect for individual liberty, Drake explains how he embraced federal environmental regulations in the early 1970s, as Goldwater emerged as a champion, although more often in words than deed, of pollution measures and wilderness protection. Goldwater could never fully reconcile his concerns for the environment and other political and economic imperatives, however. In Drake's analysis, it was for that reason that he had much in common not only with other conservatives, but also with many Americans, who often seemed conflicted over their environmental worries.

Friday, October 10, 2014

Smoke regulation in Baltimore

Pratt Street Power Plant today (G. Edward Johnson)
As a former Marylander who spent a lot of time in Baltimore, I was particularly interested when Legal History Blog recently noted the publication of Ann-Marie Szymanski's "Regulatory Transformations in a Changing City: The Anti-Smoke Movement in Baltimore, 1895–1931" in The Journal of the Gilded Age and Progressive Era. The article enters a longstanding discussion of the circumstances of the development of local environmental regulation against a common-law background, foregrounding as well dimensions of gender and class. The conclusion:
In many ways, the long road to administrative smoke regulation in Baltimore followed the path laid out by anti-smoke reformers elsewhere, albeit in fits and starts. In cities across the United States, amateur activists initially relied on the existing common-law approach to regulating nuisances, a strategy that, at best, only allowed them to shut down isolated polluters. However, when various judges and health boards proved reluctant to declare smoke to be an actionable nuisance, smoke opponents organized campaigns during the 1890s to secure smoke abatement ordinances that declared smoke a nuisance by definition. After the courts nullified several such ordinances on the grounds that only states could define nuisances, anti-smoke activists turned their attention to state legislatures, which increasingly empowered municipalities to regulate smoke after 1900. With this enabling legislation in hand, cities typically went beyond the nuisance approach. Municipal officials no longer merely responded to complaints, but became proactive. For example, they often required businesses to secure building permits for all new construction and repairs to boilers and furnaces. They also created more sophisticated solutions to the smoke problem. Whereas the common-law approach provided three basic responses to any regulatory conflict (injunctions, abatement and the payment of damages), the new anti-smoke regime proposed a variety of technical solutions, including the installation of smoke-control equipment. Of course, this reliance on technical solutions empowered those who were presumably best able to design them, namely, engineers.
Some scholars have been critical of the triumph of experts in early environmental regulation. Indeed, as the Baltimore case confirms, engineers who served as smoke inspectors often sought accommodation, cooperation, and gradual smoke reduction. David Stradling, for one, argues that such a conciliatory approach blunted the movement's impact on urban pollution; likewise, he holds that women's “arguments concerning health, beauty, cleanliness, and morality gradually lost ground to engineering concerns” and the narrower quest for efficiency. Frank Uekoetter disagrees with these conclusions, noting that even after engineers became leaders in the movement, some public officials continued to prosecute those who violated anti-smoke ordinances and ignored the inspectors' technical advice. Moreover, he finds that both women and engineers emphasized technological as well as aesthetic and moral aspects of the smoke problem, suggesting that there was no rigidly gender-specific approach to the smoke issue.
This study suggests that some female anti-smoke activists were deferential to experts without ceding the entire sphere of action to them.

Wednesday, October 8, 2014

Carbon debt

Thanks to Environmental History Resources we learned of a new contribution to the fraught topic of responsibility for historic carbon emissions. "Counting carbon: historic emissions from fossil fuels, long-run measures of sustainable development and carbon debt", by Jan Kunnasa, Eoin McLaughlin, Nick Hanley, David Greasley, Les Oxley & Paul Warde, was published in the Scandinavian Economic History Review. The abstract:
This article examines how to account for the welfare effects of carbon dioxide emissions, using the historical experiences of Britain and the USA from the onset of the industrial revolution to the present. While a single country might isolate itself from the detrimental effects of global warming in the short run, in the long all countries are unable to free ride. Thus, we support the use of a single global price for carbon dioxide emissions. The calculated price should decrease as we move back in time to take into account that carbon dioxide is a stock pollutant, and that one unit added to the present large stock is likely to cause more damage than a unit emitted under the lower concentration levels in the past. We incorporate the annual costs of British and US carbon emissions into genuine savings, and calculate the accumulated costs of their carbon dioxide emissions. Enlarging the scope and calculating the cumulative cost of carbon dioxide from the four largest emitters gives new insights into the question of who is responsible for climate change.
Sir James Dyer in his lawyer's cap
(Encyclopædia Britannica)
This is an ambitious effort, combining the skills of economists and historians. But putting on my lawyer's cap, I wonder if the assumption that "the calculated price should decrease as we move back in time to take into account that carbon dioxide is a stock pollutant, and that one unit added to the present large stock is likely to cause more damage than a unit emitted under the lower concentration levels in the past" is a valid one. In varied contexts from mass torts to common property, the law tends to apportion costs according to the proportional contribution to the problem or benefit from the activity, regardless of whose contribution caused more marginal damage due to timing.

That seems right to me from a distributive justice perspective, as well as from one focused on fault: The final unit of pollution, causing the most damage, would not have caused that much damage were it not for the first unit contributing to the stock of pollution. Think of the following example: Poisoner 1 slips half a dose of poison, in this amount completely harmless, into a victim's drink. Then Poisoner 2 slips another half dose. Would we say that only Poisoner 2 is responsible because only his action resulted in any marginal social cost?

Sunday, October 5, 2014

The Most Ambitious Environmental Lawsuit Ever

That's the title of a piece by Nathaniel Rich in the New York Times Magazine. Rich writes:
As the Mississippi shifted its course over the millenniums, spraying like a loose garden hose, it deposited sand and silt in a wide arc. This sediment first settled into marsh and later thickened into solid land. But what took 7,000 years to create has been nearly destroyed in the last 85. Dams built on the tributaries of the Mississippi, as far north as Montana, have reduced the sediment load by half. Levees penned the river in place, preventing the floods that are necessary to disperse sediment across the delta. The dredging of two major shipping routes, the Mississippi River Gulf Outlet and the Gulf Intracoastal Waterway, invited saltwater into the wetlands’ atrophied heart.
Beneath the surface, the oil and gas industry has carved more than 50,000 wells since the 1920s, creating pockets of air in the marsh that accelerate the land’s subsidence. The industry has also incised 10,000 linear miles of pipelines, which connect the wells to processing facilities; and canals, which allow ships to enter the marsh from the sea. Over time, as seawater eats away at the roots of the adjacent marsh, the canals expand. By its own estimate, the oil and gas industry concedes that it has caused 36 percent of all wetlands loss in southeastern Louisiana. (The Interior Department has placed the industry’s liability as low as 15 percent and as high as 59 percent....)
The oil and gas industry has extracted about $470 billion in natural resources from the state in the last two decades, with the tacit blessing of the federal and state governments and without significant opposition from environmental groups. Oil and gas is, after all, Louisiana’s leading industry, responsible for around a billion dollars in annual tax revenue. Last year, industry executives had reason to be surprised, then, when they were asked to pay damages. The request came in the form of the most ambitious, wide-ranging environmental lawsuit in the history of the United States. And it was served by the most unlikely of antagonists, a former college-football coach, competitive weight lifter and author of dense, intellectually robust 500-page books of American history: John M. Barry.
The article goes on to detail the dramatic background to the lawsuit, constitutionally questionable political efforts to kill it in the Louisiana legislature, and Barry's place in all this. Worth a read.

Friday, October 3, 2014

Early environmental justice

Legal Planet's Jonathan Zasloff recently noted the publication of Josiah Rector's "Environmental Justice at Work: The UAW, the War on Cancer, and the Right to Equal Protection from Toxic Hazards in Postwar America" in the Journal of American History. The article greatly enriches our knowledge of the history of the environmental justice movement; indeed, of the history of environmental law as a whole. Rector writes:
Despite the amplitude of the literature, occupational health historians have devoted surprisingly little attention to the relationship between health and safety activism and the post–World War II civil rights and feminist movements, or the role of health and safety activism in the rise of the environmental justice movement.
Ford's River Rouge Plant (1931)
Meanwhile, the nascent historiography of the environmental justice movement, largely written by social scientists, has tended to ignore labor's contributions, with the important exception of the United Farm Workers 1968–1971 campaigns against pesticide exposure. Most books about environmental justice, including many brilliant and formidable works of scholarship, present a brief, potted history of the movement, beginning with the struggle over polychlorinated biphenyl (PCB) dumping in Warren County, North Carolina, in 1982. Scholars of the topic have neglected the fact that as early as 1970 occupational health and safety activists used the term environmental justice to refer to the right to protection from toxic hazards codified by the Occupational Safety and Health Act (OSH Act) and the National Environmental Policy Act (NEPA). Few scholars, moreover, have noted that the UAW's 1976 Working for Environmental and Economic Justice and Jobs National Action Conference in Black Lake, Michigan, helped popularize environmental justice. This elision is ironic, since the disproportionate exposure of workers and people of color to toxic hazards was a major theme of the conference—one of the first to gather civil rights, feminist, labor, and environmental activists for sustained dialogue.
Rector's article focuses on occupational cancer in American auto plants as a case study. I hope we'll continue to see more work by him and others (see for example recent articles by Gregory Alexander and Stefania Barca) on working class environmentalism and environmental law.

Tuesday, September 30, 2014

Reversing the past

This is another one of those mind-bending posts in which the past and future are all mixed up. Alejandro Camacho recently posted "Going the Way of the Dodo: De-Extinction, Dualisms, and Reframing Conservation". It involves the possible future "de-extinction" (i.e. revival) of currently (or future) extinct species, and while it doesn't deal with history strictly speaking, it does raise the question of reversing history, as well as complicate the idea of the "natural" in a way familiar to environmental historians. The abstract:
De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises much more fundamental questions about the relationship between humans and nature, and the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on understandings of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.
Through the example of de-extinction, this article illustrates the limitations of the law’s reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity’s indivisibility from it.