Thursday, April 16, 2015

Environmental legislation in 1860s Australia

Last summer we posted on articles on water law and pollution law in colonial Victoria. According to Tristan Orgill, "The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria", the law at the time actually dealt with an even wider range of environmental issues. The abstract:
Between 1851 to 1860, an unprecedented ‘gold rush’ wrought a profound transformation upon the fledgling state of Victoria. By 1860, Victoria’s population had increased sevenfold and the colony was attracting ‘worldwide fame’ as one of Britain’s wealthiest settlements. However, this colonial prosperity came at a high environmental cost. Whether by land clearing for agriculture or mining, industrial and urban pollution, or the over exploitation of game, fish and timber - colonial progress often meant, as one colonist observed, that ‘every feature of nature [was] annihilated’. Almost all historians have argued that the environmental degradation of Victoria was an inevitable consequence of the widespread antipathy (or antagonism) of Victorians to what they perceived as a foreign and ugly environment. Whilst some colonists called for restraint, ‘the colonial project - to master, develop, and prosper - overwhelmed the faint cry of such sentiments’. 
ST Gill, Diggings in the Mount Alexander district of Victoria in 1852
This paper will contend that this dominant historical narrative is specious and inconsistent with surviving primary source material. Not only was environmental concern prevalent in Victorian society, popular concern persuaded Parliament to enact considerable environmental legislation throughout the 1860s. Historians have either blithely dismissed or simply ignored the history of this legislation. This is perplexing given that the development of law provides a critical insight into Victorian society’s commitment to - and reasons for - addressing environmental concerns. Thus, this paper examines the three most significant environmental regimes enacted throughout the 1860s: namely, the game, fish and timber statutes.
It will be shown that these regimes were primarily justified by utilitarian conservation arguments and, additionally, that aesthetic and moral considerations were vital. The existence and influence of a ‘proto-preservationist philosophy’, which underpinned the enactment of these statutes, disproves the orthodox historical narrative that colonial society was generally apathetic to environmental degradation and that colonists who voiced concerns were ‘insignificant’.

Wednesday, April 15, 2015

Tuesday, April 14, 2015

The history of procedure and environmental law

As my colleague Issi Rosen-Zvi often reminds us, the issue of lawyer's fees, and procedural rules more generally, have major effects on substantive outcomes. History, it seems, bears him out, as over at Legal Planet Jonathan Zasloff recently posted on the connection between developments in civil procedure and the famous Mono Lake Case:
How was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power?
At one level, the answer is obvious: it found a Sugar Daddy, in this case, the international law firm of Morrison & Foerster, which according to John Hart’s fine book Storm Over Mono, agreed to contribute $250,000 of attorney time to the case — nearly $1 million in today’s money. But this, of course, begs the question of why MoFo agreed to put in that much money. (And of course, the case wound up costing far more).... 
I am still looking into this, but I cannot help but suspect that California Code of Civil Procedure 1021.5 has something to do with it. That provision is familiar to most California lawyers: it allows fee-shifting “in any action which has resulted in the enforcement of an important right affecting the public interest.”
That, at any rate, would explain things: MoFo didn’t take the case pro bono: it took it on contingency, gambling that it would get its attorneys’ fees if it prevailed. It might even get a “multiplier,” i.e. more than its attorneys fees, if the case was especially hard, which it was.... 
And when did 1021.5 come into effect? January 1, 1978, the year after it was enacted (as is standard under state law), and just when the Mono Lake Committee was about to give up. Just in time.
...the case is seen as coming out of the environmental movement of the late 60’s and early 70’s, but if MoFo had been approached even five years earlier, the whole thing might have collapsed.

Sunday, April 12, 2015

Morag-Levine on the history of precaution

Noga Morag-Levine, who participated in the roundtable at the recent ASEH conference on what environmental history and legal history can learn from each other, also recently posted her American Journal of Comparative Law review essay on the history of precaution (following on a condensed, blog, version in 2013.) The abstract:
The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books — The Politics of Precaution by David Vogel — and The Reality of Precaution, edited by Jonathan Wiener with several others — have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.
Edwin Chadwick, who brought the Continental
precautionary approach to Victorian England
This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper’s starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state’s autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative law traditions respectively associated with Anglo-American common law and Continental civil law.

Thursday, April 9, 2015

Back to blogging

I've been too busy with other things to keep up with the blog recently, but decided that the Passover holiday, the Jewish springtime festival, is a good time to to commit to renewing my efforts. So I'll be trying once again to write on a regular basis.

Springtime flowering in Nachal Hameara, "Valley of the Cave",
where we hiked this week (Oren Peles, from Pikiwiki)

That being said, I'd be grateful for help: If you'd like to write a short post noticing recent scholarship or activities, to write about your own work (research, writing, teaching, or whatever), to critique someone else's, or to muse on recent developments in the intersection of law and the environment that can be illuminated by a historical angle, please let me know.

More on Joseph Sax

At the recent ASEH conference in Washington, DC I attended an interesting panel commemorating Joseph Sax and examining his influence in several fields. The organizers of the panel have created a website with the panel presentations, as well as other resources on this important figure in the history of environmental law.

Also on the same topic, I recently came across Mark Van Putten's "Making Ideas Matter: Remembering Joe Sax", recently published in the Michigan Journal of Environmental and Administrative Law. The abstract:
Joe Sax made his ideas matter. He had consequential ideas that shaped an entire field—in his case, environmental law—both in theory and in practice. His scholarship was first rate and has enduring significance in academia, as evidenced by the fact that two of his law review articles are among the 100 most frequently cited articles of all time. Others are more competent to review the importance of his scholarship; my experience in environmental advocacy is more pertinent to evaluating his impact on environmental policymaking. Here, his ideas have had a greater impact than any other legal academic. As the New York Times observed in the opening sentence of its obituary for Professor Sax, he “helped shape environmental law in the United States and fueled the environmental movement.” As environmental law historian Richard Lazarus put it, Sax “provided much of the strategic blueprint followed by the environmental public interest groups,” which is still followed more than fifty years after he began his career at the University of Colorado Law School in 1962. How did a self-effacing, erudite, bookish professor come to have such an impact?
If you know of other remembrances or other resources having to do with  Prof. Sax, please send them my way, or offer to write something on him for this blog!

Saturday, January 24, 2015

Latin America and the US Wilderness Act

Joining pieces by Donald Worster and Libby Robin in Environmental History's roundtable on the US Wilderness Act of 1964 is one by Emily Wakild, "Acts of Courage, Acts of Culture: The Wilderness Act and Latin America". Wakild writes that the history of parks in Latin America defies the social critiques of wilderness that have been advanced in recent years:
In 1940 Mexico had more national parks than any country in the world. Nestled among pine and fir forests, sprawling across volcanoes in the shadow of Mexico City, these parks bore the mark of a particular kind of conservation. Linked to the Mexican Revolution, a vibrant and widespread battle for social justice from 1910 to 1940, the most representative government in the nation’s history created parks as one of many components of a pervasive policy transformation that sought to elevate and empower working Mexicans by providing labor protections, redistributing land, invigorating education, and implementing meaningful political reforms in accord with the Constitution of 1917. While these parks protected natural scenery and had wild components (forests, lakes, glaciers), they were emphatically parks designed for people—places for rural and urban workers to relax or to find new livelihoods in tourism. At their creation, no wilderness whispered in these woods and no wildlife ran in these ecosystems; this was conservation in service of the poor and vulnerable, conservation with social objectives, conservation with people at the center. Today, nearly every remaining swath of greenery gasping for air in the Valley of Mexico is one of these emblems of the revolutionary movement—social justice stitched into the landscape as conservation.
Nahuel Huapi Park, Argentina, the first national park (1903) in South America
Critiques of wilderness have become rote in the past twenty years, perhaps overly so. Consider the history of Mexican national parks in reference to the rise of “new conservation” laid out most emphatically (and hubristically) by Peter Kareiva, Robert Lalasz, and Michele Marvier in 2011. They called for conservation to move beyond parks and protected areas and into programs for rural development and human well-being. They argue that “the modern protection of supposed wilderness often involves resettling large numbers of people” and that “ecologists and conservationists have grossly overstated the fragility of nature.” Both claims play into a classic trope, one that places indigenous and non-Western peoples at the mercy of Northern scientists and overlooks their own agency to build and create rather than to merely react. Not only is there little new about proposals to merge working and natural landscapes—a move Mexicans (and likely others) pioneered in the 1930s—but there is little to show that this will result in improved livelihoods or more vibrant natural spaces. Has conservation alone solved problems of poverty, inequality, and uneven development? No, and that is not what it set out to do. But to assert that conservation has caused these problems, or even has been complicit in them, is to ignore conceptions of conservation and wilderness that do not translate into a US-centered narrative of nature protection. 
There's lots more of interest here.

Monday, January 19, 2015

CFP: Disaster, Environment and Property

Readers may be interested in the recent call for papers (courtesy of H-Environment) for an international conference on "Disaster, Environment and Property: historical approaches, 19th-20th centuries", to be held at EHESS in Paris 2-3 December, 2015. The call explains:
Property systems are essential operators in the anthropization of environments. The transformations they cause or enable often contribute to increasing societies’ exposure to natural hazards. Conversely, historical research shows that some forms of ownership and inheritance law can help to avoid the occurrence of disastrous events, such as avalanches in mountainous areas. Central and local authorities have also long sought to constrain property rights in order to prevent the occurrence of disasters and alleviate their effects, for example by compulsory purchase or the restriction of individual property rights.
Taking a historic perspective focusing on the 19th and 20th centuries, the conference will explore the interactions between property systems, resources and environments, and the particular class of socio-ecological processes that is disasters. The concept here is understood broadly to include “natural”, “industrial”, “demographic” and “ecological” disasters. Property systems are taken as the whole range (individual property, public ownership,  common property and commons, servitudes, intellectual property) with particular stress on the actual practices (technical, legal, scientific, enforcement, etc.) that underpin their existence and combine to make them operate as historical institutions.
Disasters, in their short- and long-term effects, reshape the operating conditions for private and public actors, enabling them to affect the distribution of property and its workings, i.e. its rules of acquisition and transmission and the rights it entails.
A disaster is an occasion for the transformation of property in ways that may have many purposes and motivations: economic, political, ideological. It is also likely, by design or chance, to produce, at a relatively small scale of space and time, an “emergency situation” for property as ordinary rules are relaxed or relief must be provided. Disasters are also a motive for action, often as part of public policy, affecting property rights in order to prevent a catastrophe in advance, or mitigate or repair its effects afterwards. These three aspects (opportunity, emergency, management) interact and overlap to produce a complex set of processes of historical co-construction of property and disasters that the conference will address.
More details at H-Environment.

Sunday, January 18, 2015

Cost-benefit analysis in recent history

Michael Livermore and Richard Revesz recently posted "Interest Groups and Environmental Policy: Inconsistent Positions and Missed Opportunities". In it they argue that over the last few decades the positions of polluters and environmentalists on two of the central questions of environmental law and policy have flipped. The abstract:
This Essay examines and explains the positions of the principal interest groups over the past four decades with respect to the two central questions of environmental policy: the appropriate policy goal and the instrument that should be used to carry out the policy. With respect to the first question, the Essay observes that, at the beginning of the contemporary period of environmental law, industry groups strongly supported setting the stringency of environmental standards by reference to cost-benefit analysis. At the same time, environmental advocacy organizations strongly opposed the use of cost-benefit analysis. As environmental regulators gained greater proficiency in the quantification and monetization of environmental benefits, industry groups came to see that, when properly conducted, cost-benefit analysis could justify stringent environmental protection. Consequently, they have abandoned their original enthusiasm for the technique. Similarly, over the same period of time, environmental groups came to see the promise of cost-benefit analysis, for similar reasons.
An example of an industry attack on marketable permits
With respect to instrument choice, industry groups were originally attracted to marketable permit schemes as a lower-cost means of achieving pollution reduction, while environmental groups were skeptical of the these approaches. First with the Clean Air Act Amendments of 1990, and then when faced with the daunting challenge of climate change, environmental groups acknowledged that market mechanisms are more economically and politically viable than command-and-control regimes because they impose far lower aggregate costs on society. And, industry groups realized that by attacking marketable permit schemes they might defeat greenhouse gas regulation altogether. 
While environmental groups and industry have largely switched positions on the two central questions of environmental policy, the points at which their positions overlapped were fleeting, and opportunities to make substantial progress in rationalizing the system of environmental regulation have largely been unrealized.

Friday, January 9, 2015

An Australian take on the US Wilderness Act

The Reflections section of the latest Environmental History on the US Wilderness Act has a piece by Libby Robin, "Wilderness in a Global Age, Fifty Years On", offering an Australian angle. Robin writes:
While the US national parks model, “America’s Best Idea,” had a strong following in Australia in the 1960s, the idea of wilderness never had the strong transcendental or romantic attraction it held in America. Our wilderness did not create heroes. Australians died in the bush: being away from settlement meant being away from water, and survival was precarious. By 1990 the idea of wilderness was also seen as “western” and not inclusive of Indigenous history. Australian ecologists and historians fiercely debated the limits of “wilderness thinking” some years before Environmental History published William Cronon’s “The Trouble with Wilderness” in 1996. While Richard White’s wry paper “Are You an Environmentalist or Do You Work for a Living?” had a strong following among historians of our 1980s forest debates, it has been the powerful critiques from Aboriginal Australia that have determined new directions in twenty-first-century practices of biodiversity conservation and in the way national parks are now managed.
Walking along Garie Beach, Royal National Park.
Photo: Andy Richards
Some states followed “America’s Best Idea” more closely than others. The New South Wales (NSW) National Parks and Wildlife Act (1967) was directly modeled on the American legislation; its inaugural director of the National Parks and Wildlife Service was Samuel Weems, former parks adviser to the US Department of the Interior. NSW learned of the model at the First World Congress of National Parks held in Seattle in 1962, a major international meeting. NSW National Parks Service joined the enthusiasm for a second congress, in Yellowstone National Park, timed to celebrate a World Centennial of the National Parks Idea in 1972. It was only late in the game, after the US Congress had approved financial support for the event, that organizers realized Yellowstone itself was not a legislated national park in 1872. Technically, the world’s first national park legislation had been passed in NSW on March 31, 1879, to establish the National Park (later Royal), an urban park, just 15 miles from the center of Sydney. This was nothing like the bigger, wilder model of Yellowstone, 1,000 miles from any city. NSW parks managers, as keen as their US colleagues to celebrate a World Centennial in 1972, did not press a claim for priority. They wanted larger more remote wild national parks, and having little interest in city parks, they were aware of wide support for a World Centennial not just in the United States but also in other Western nations where national parks had emerged early including New Zealand, Canada, South Africa, and Sweden. 
Robin writes about the tensions between nascent recognition of indigenous relationships to the land and American ideas of wilderness: