Friday, February 10, 2017

Race and public lands

A recent issue of Environment and History has an article connecting issues of conservation and race, Harald Witt's "Indigenous Trees and Forests: Contradictions, Conflict and Conservation in Natal and Zululand (1900–1960)". The abstract:
At the turn of the nineteenth century, it was estimated that nine-tenths of the identified forests in Natal had been permanently alienated from the Crown through their incorporation into private lands and Native Trust Lands. The entrenchment of the political power of white land-owners in the twentieth century ensured that official attempts at restraining private land-owners from destroying indigenous forests on their lands were doomed to fail. Trust forests, as quasi state forests, were however, more accessible to Forestry officials, who remained convinced that the management and ultimately preservation of these forests could best be controlled and managed by themselves. This article examines the manner in which the conservation and administrative control of the various forests on Trust lands became the subject of dispute between various organs of the state in the first half of the twentieth century. This contestation was characterised, on one level, by a general shift from a conservationist and utilitarian approach in regard to the management of indigenous forests to one that was far more preservationist in definition while, at the same time, illustrating fierce administrative tensions between a relatively compassionate Department of Native Affairs and a Department of Forestry that subscribed to a more racialised agenda.
 Coastal Forest Dunes at Sodwana, Zululand (Carlos de Resende)

Wednesday, February 8, 2017

Equal access to justice or to obstruction?

As environmentalists deliberate the extent to which the courts can be used to stymie the anti-environmental agenda of the current American regime, the latest issue of Environmental History has a book review by Steve Vanderheiden of Lowell Baier's Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America's Lands, Endangered Species, and Critical Habitats (Rowman & Littlefield, 2016). Baier's book apparently makes a strong argument, and Baier is appreciative but critical:
Adopted in what Lowell E. Baier describes as “the earliest legislative manifestation and harbinger” of the Reagan Revolution (p. 79), the 1980 Equal Access to Justice Act (EAJA) authorizes reimbursement of legal fees for prevailing parties suing the government. While originally designed to serve a deregulatory agenda that would limit state power over business and persons, the EAJA has frequently come to support environmental groups pressing the federal government through the courts for greater environmental regulation, rather than less. According to Baier... the litigiousness of these groups has paralyzed the administrative state and eroded its capacity to manage the nation’s resources, to the detriment of the environment that such groups set out to protect.
Baier, as a lawyer and historian, is sharply critical of this policy evolution of the EAJA, through which courts and civil society groups came to play an increasing role in environmental policy, challenging the actions or omissions of resource management agencies. Part narrative history of the development, passage, and later evolution of the act, and part polemic against the US environmental movement and its legal strategy, the book is bound to attract two different sets of readers. Historians and other scholars of US environmental politics will find a scrupulously narrated account of the political milieu from which this legislation emerged, along with its evolution over recent decades, in the book’s first four chapters. Assembled from an impressive array of interview notes and archival texts, these accessible chapters detail the original objectives for and later impacts of this important statute.
More polarizing is the polemic that follows, with Chapters 5 and 6 painting the majority of organized environmental groups with a crude and uncharitable brush, Chapters 7 and 9 launching a relentless series of accusations against environmental litigants and their legal strategies, and Chapter 8 offering an alternative to this kind of adversarial politics in the form of “cooperative conservation,” through which polluting industry and the state are touted as better able to protect the environment in the absence of legal accountability to civil society groups....

Monday, February 6, 2017

Domestic law instead of international agreements?

The latest issue of Water International published an article by Marco Verweij, "The remarkable restoration of the Rhine: plural rationalities in regional water politics". First, the abstract:
The restoration of the Rhine basin is widely viewed as an exemplary case of international water protection. The river’s clean-up has been characterized by a number of puzzling developments. These include chemical companies reducing their toxic effluents by more than legally required, and riparian governments quarrelling internationally over environmental measures that each of them were undertaking domestically. It is argued that the plural rationality (or cultural) theory pioneered by Dame Mary Douglas offers an empirically valid explanation of these remarkable processes.
The article tells an interesting historical story, with implications for current international environmental issues such as climate change. An excerpt (citations omitted):
The efforts to stop the environmental degradation of the Rhine between 1963 and 1986 were paradoxical. The attempts to do so with the help of international agreements were ineffective at best, and counterproductive at worst. Yet, simultaneously, the domestic efforts to clean up the Rhine were quite effective in each riparian country. 

Thursday, February 2, 2017

Environment, history, and the US Supreme Court nomination

All history may be contemporary history, but yesterday's post had present concerns front and center. Continuing the trend, today's post is inspired by the nomination of Neil Gorsuch to the US Supreme Court. Others have attempted to divine how Gorsuch would rule on environmental issues, but here we'll take a historical tack, looking back at some earlier posts dealing with environmental issues in the US Supreme Court. Some of the topics covered:

Wednesday, February 1, 2017

Nature and anti-immigrant politics

With great timing, the latest Environmental History has a review by Sterling Evans of John Hultgren's Border Walls Gone Green: Nature and Anti-immigrant Politics in America (U. Minnesota Press, 2015), reminding us that current events have historical (and environmental) roots. (I note that it's frightening how far the "racial logics" that are "socially acceptable withing mainstream political discourse" (see below) have shifted between the book's publication two years ago and the Trump Era.) Some excerpts:
This highly recommended book focuses on the nature of building US-Mexican border walls, the racism that has accompanied such policies, and the anti-immigration fervor that has followed within some environmental organizations. The term that John Hultgren relies on to discuss this issue is “environmental restrictionism,” and he discusses its efficacy very well in Border Walls Gone Green.
Hultgren, a political scientist, suggests the “central thesis” of the book is that “nature is increasingly being deployed as a form of walling—providing a subtle means of reinforcing ‘territorial’ borders without having to revert to racial and cultural logics that are no longer socially acceptable within mainstream political discourse” (pp. 1–2). That is a meritorious thesis to pursue in this study and one that Hultgren works to prove by the end of the book. “Nature, in this sense,” he posits, “provides a way for immigration restrictionists to expand their alliances beyond the far right while still maintaining the support of nativists,” a scenario that he argues is hardly new with “American greens” (p. 2). For theoretical background he provides some historical context from the anti-immigration stances of members of Earth First!, the Sierra Club, and a variety of environmentalist writers and activists. Thus he unpacks the connections between the “nature” of restrictionists and “narratives of political community” in this “emerging form of territorialization.” In other words, his goal is to shed “light on the discursive and institutional pathways through which nature is subtly woven into exclusionary political projects” (p. 3). In a larger sense, Hultgren’s point is to draw attention to “the complexities of natural-cultural interconnection,” especially how the environmental movement has been guilty of using “nature’s perceived location within progressive politics … to be used for exclusionary purposes by a variety of actors who seek to naturalize their (usually privileged) location within the political community while marginalizing others” (p. 5). 
For more on this issue, see here and here.

Thursday, January 26, 2017

Legal change and geography of the Great Lakes-St. Lawrence system

The Canadian Geographer recently published Jamie Benidickson's "From boundary waters to watersheds: Legal change and the geography of the Great Lakes-St. Lawrence system" (thanks to Canadian Legal History blog for noting it). The abstract:
It is appropriate to recognize an evolving legal and institutional perspective on the Great Lakes-St. Lawrence system (GL-SL) as a means of furthering the understanding that is provided from established cartographic, bio-geological, historic, and cultural perspectives. This paper describes elements of that evolution from a one-dimensional legal conceptualization of the GL-SL as a boundary reflecting sovereign autonomy and state security, through a more complex recognition of the water system involving navigation, fisheries, and water supply, to a more comprehensive acknowledgment of basin- and ecosystem-oriented approaches where land-use activities and influences ranging from groundwater flows through air-borne contamination must be accounted for. The Boundary Waters Treaty of 1909 and the Great Lakes Water Quality Agreement (1972–2012) provide general points of reference.
There's a lot in this article on pollution regulation, fisheries, and more.

Tuesday, January 24, 2017

California, Chile, and water law

Ralco dam & hydroelectric plant, Veoverde
Carl Bauer and Luis Catalán recently posted “Water, law, and development in Chile/California cooperation, 1960s-1970s”. First, the abstract:
During 1963-1978 the governments and the top universities of Chile and California undertook three programs of binational development assistance and cooperation. The programs built on a long historical relationship between the two regions, marked by their striking similarities in physical geography and natural resources, despite being 1000s of miles apart on opposite sides of the Equator. The first program was for technical development assistance to Chile in the framework of the Alliance for Progress, and involved the three governments of Chile, California, and the United States. Water resources and river basin development planning were a primary emphasis, and led to building Chile’s largest dual-purpose reservoir (Colbún). The second program was for graduate-level academic exchange and involved the two leading public university systems, the University of Chile and the University of California. This comprehensive program was funded for more than a decade by the Ford Foundation, with agriculture, natural sciences, and engineering the dominant fields. The third program was a separate effort to reform Chilean legal education, led by Stanford Law School and funded by the Ford Foundation. This Chile Law Program was a leading international example of the “law and development” movement in the 1960s, which overlapped closely with the early years of the “law and society” movement in the U.S. Both university and law school programs ended after the Chilean military coup in 1973. What were the impacts of these programs on water, law, and society in both Chile and California? What lessons can we learn today from those historical experiences? We answer these questions with an historical overview and synthesis of diverse documents and evidence. In focusing on water, law, and society, we aim to contribute to the interdisciplinary synthesis of different fields of development studies.
And from the conclusion:
In terms of water, California’s influence has been noticeable in dams and technology, but not in law and policy....

Friday, January 20, 2017

In memoriam: Wolfgang Burhenne

January 6 saw the passing of Wolfgang Burhenne, a key figure in post-war German and international environmental law, at age 92.

A review by Tracy Mehan in the Environmental Forum earlier this year tells explained that Burhenne spent much of World War II imprisoned by the Nazis for aiding the resistance. Then, after the war:
through an unpaid engagement with a hunting club, he eventually obtained employment with the hunting administration of the Free State of Bavaria. There he became involved in hunting legislation. And so his passion became the preoccupation of his professional life. Hunting shaped his ideas on sustainability, i.e., “use natural resources in a way that allows full recovery.” “Sustainable use is a principle I have always known from hunting,” maintained Burhenne.
Burhenne and his second wife, Françoise, were “directly involved in nearly all major international conventions concerned with conservation over the past 25 years, and the development of the World Conservation Union (IUCN) Environmental Law Center in Bonn,” as described by the United Nations Environment Program when awarding them the UNEP International Environmental Prize in 1991. “No two people have done more to strengthen the position of international and national environmental law as a fundamental element of environmental management,” according to the citation....
Wolfgang Burhenne was a highly successful policy entrepreneur and the node connecting several nongovernmental organizations and foundations, some of which he basically created from scratch. His wife provided the intellectual ballast while he forged the alliances, negotiated the treaties and raised the money. Together they worked on countless drafts and treaties that are the foundation of much of international environmental law, among them the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals, the 1982 UN World Charter of Nature, the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, and the 1992 Convention on Biological Diversity.

Tuesday, January 10, 2017

In search of post-Brexit England

I highly recommend reading a beautiful piece by Helen Macdonald just published in the New York Times Magazine, "In Search of Post-Brexit England, and Swans". The story opens:
In the days after the Brexit vote last year, I became obsessed with an oil painting called “Swan Upping at Cookham” [below, Stanley Spencer, 1915-1919], which portrays a scene from an ancient and colorful English tradition. “Swan Upping” refers to the annual summer voyage of a flotilla of wooden skiffs that sets off from the town of Sunbury-on-Thames on a five-day journey to catch all the swans on the upper reaches of the River Thames. The crews check the parentage of young birds and place a mark on them to claim their ownership: Some belong to the queen, others to the Worshipful Company of Vintners and the Worshipful Company of Dyers, two ancient trade guilds based in the City of London. The painting depicts a traditional stop on the uppers’ trip. Here is the river and the Ferry Inn, wooden punts, moody clouds, women carrying cushions, a fretted iron bridge and a swan bound and hoisted in coils of rope and canvas, white neck craning from a man’s shoulder.

After some interesting background on the painting and on the place of these swans in English national mythology, Macdonald explains more about the legal historical background of the "upping":

Friday, December 30, 2016

Was zoning constitutional?

A while back I promised more on John Nolon's series on zoning's centennial, so here are some excerpts from his Part 3: "Zoning was Contagious, but was it Constitutional?":
By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.”  Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”
Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.
In the leading case of Village of Euclid v. Amber Realty Co.:
The Court noted that ”while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” 
(Chad Felton — The News-Herald)