Tuesday, March 21, 2017

Environmental law and the 1970s

Keith Hirokawa recently posted "Contextualizing the Roots of Environmental Law". The abstract:
This review of Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–1970 (2009), considers an attempt to describe the law’s “environmental history” through a narrative account of incrementalism. The author’s deep research and skillful storytelling takes us into the struggles of early environmental advocates, who yearned to become citizens of a broader biotic community and catalyzed tensions between nature and politics and property. The author capitalizes on the co-dependencies of human and environmental sovereignty and reveals the continuous interplay of human action, nature, and legal evolution. Despite making tremendous discoveries about the emergence of environmental law, the book makes a further claim. The author suggests that most commentators erroneously focus on the environmental decade of the 1970s, instead of the roots that took hold and flourished in the post war period. In so doing, the author argues, most commentators fail to grasp the political, economic and environmental commitments made prior to the 1970s. This essay argues that although environmental law has always appeared at the crossroads of environmental challenge, economic needs, property, identity, and community, we cannot avoid the environmental law of the 1970s, when the convergence of disciplines informed our regulatory approach and when the immediate need for environmental quality became part of the law.

Monday, March 20, 2017

Gorsuch and Hamburger

A few months ago we noted some of the environmental dimensions of Philip Hamburger's revisionist account of the history of administrative law. Now Eric Posner points out some contemporary relevance of Hamburger's controversial views (thanks to Legal History Blog for flagging the post, and to Eric for approving the re-post):
Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?
Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.
I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.
In rereading Hamburger, I am struck by three themes, which resonate with our political times.

Friday, March 17, 2017

Fisheries litigation

Robin Kundis Craig and Catherine Danley recently posted "Federal Fisheries Management: A Quantitative Assessment of Federal Fisheries Litigation Since 1976". The abstract:
When Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act in 1976, it intended the Act to operate largely without the courts. Indeed, since the statute’s enactment, the National Oceanic and Atmospheric Administration (NOAA) and the regional Fisheries Management Councils have published over 1700 regulatory actions in the Federal Register, but cases challenging fisheries management have been relatively limited. 
Given how much fisheries management “flies under the courts’ radar,” so to speak, it is worth asking what kinds of cases do end up in the courts. This article presents an initial quantitative assessment of federal fisheries litigation since 1976 to begin to assess the role of the courts in federal fisheries management. It concludes first that the 1996 and 2006 amendments to the Magnuson-Stevens Act, each of which added enforceable ecological requirements, both increased the amount of environmentally-minded litigation brought under that statute. Nevertheless, contrary to many perceptions, fishermen always have been the Act’s primary litigants, arguably confounding Congress’s original intent for fisheries management.

Monday, March 13, 2017

Water law and imperial control

Roman Yu. Pochekaev recently posted "'Water Law' as an Instrument of Russian Imperial Policy in the Central Asian Khanates". The abstract:
Water has always been an important resource for Central Asian states and peoples. Different rulers at different times used water, and access to it, as an instrument of political and even military influence. When the Russian Empire expanded into Central Asia, seizing substantial parts of three central Asian khanates (Bukhara, Khiva and Khoqand) and established its own protectorate over these states, its also found that water was one of the most effective means to control the rulers and peoples of Central Asia. The use of water and irrigation policy as an instrument of rule was effectively used by the Russian Empire in its relations with the Central Asian khanates and this has already been the subject of investigation. This paper analyses the legal regulation of water use and the irrigation policy of the Russian Empire in Turkestan in order to influence the Bukharan Emirate and the Khivan Khanate during the epoch of the Russian protectorate (1870s–1910s). The paper demonstrates how the internal “water law” was a starting point in Russian policy towards Bukhara and Khiva, and shows that each subsequent stage was closely connected to the evolution of the “water law” in the Russian Turkestan. The sources are official documents (including legal acts) of the Russian Empire, correspondence of Russian and Central Asian statesmen, memoirs of contemporaries and the notes of Russian visitors to khanates (diplomats, engineers, etc.) who participated in the realization of Russian water policy in Bukhara and Khiva and could estimate its effectiveness.
Irrigation map of Turkestan
(Glavnoe Upravlenie Zemleustroistva i Zemledeliya, Otdel Zemel'nykh Uluchshenii 1914)
For more on natural resources law in imperial Russia see here.

Sunday, March 12, 2017

The law and climate change under Reagan and Bush I

President Bush signs the UN Framework Convention on Climate Change in Rio, June 1992
(Source: UN)
It may seem like ancient history today, but a mere twenty-five years ago US Republicans supported climate change legislation and treaties, as Greg Dotson reminds us in a post at The Conversation:
In 1987, President Reagan signed the Global Climate Protection Act into law, giving the EPA the lead agency role in developing and proposing a “coordinated national policy on global climate change.”
In 1992, President George H. W. Bush negotiated the landmark climate treaty the United Nations Framework Convention on Climate Change. Upon reaching the agreement, Bush EPA Administrator Bill Reilly wrote that a number of EPA programs would play “a key role in enabling the United States to meet the goal of the Climate Change Convention: to cut greenhouse gas emissions using a benchmark of 1990 levels.” For example, EPA’s Green Light Program which Reilly had initiated in 1991 gave birth to the Energy Star program in 1992, a voluntary program that helps businesses and individuals protect the climate through energy efficiency.
When the U.S. Senate ratified the Framework Convention in 1992, Senator Mitch McConnell said it was “a fine agreement.” The EPA assumed the duty of preparing the official U.S. Inventory of Greenhouse Gas Emissions to comply with the nation’s commitments under the treaty.
More on conservatives and environmental regulation here and here.

Thursday, March 9, 2017

Law as constitutive of environmental attitudes

Henrys Fork, Idaho
Jerrold Long recently posted "The Origins of a Rebellion: Religion, Land, and a Western Environmental Ethic". The abstract:
This article examines an apparent irony in the environmental ethic of the contemporary American West. Much of the Interior West is dominated by a particular culture that is the product of Mormon settlement in the Salt Lake Valley and subsequent expansion throughout the region. The teachings of early Mormon leaders contained significant threads of what today would be recognized as environmentalism. Despite these teachings, and despite Mormons’ famously strict adherence to other theological tenets, the environmental ethic of the contemporary West is often perceived as anti-environment. Why would this culture, which holds so fast to its other religious teachings — including those teachings that for a time had significant and negative political, legal, and economic effects — reject this aspect of religious doctrine? Using the Mormon experience as a case study, this article argues that the contemporary West’s conservative environmental ethic is a tapestry woven from the interrelationships of legal regimes found and developed during western settlement, the cultural origins and destinations of the settlers, and the physical landscape itself. It is both what settlers found and developed upon arriving in the interior West that led to the region’s contemporary environmental conservatism.
In other words, Long is arguing that environmental law shaped environmental attitudes (notes omitted):
We tend to think of law as following culture (or ethics, or morals) both temporally and substantively. But the relationship is instead recursive, with both law and culture emerging from and giving rise to the other. As we assess the validity of a particular legal landscape, we compare it to shared meanings to determine if it is both valuable and legitimate. At the same time, we assess the value and legitimacy of our shared meanings by comparing them to what the law says is appropriate.
So while the Mormon settlers.., arrived, from all over the world, with cultural meanings in tow, those meanings were both confirmed and influenced by the legal landscape the settlers encountered upon arriving in the [region].
With regard to attitudes water among Mormon settlers in Idaho, Long argues:
When the Mormon (and other) agricultural settlers began arriving in the Henrys Fork region at the end of the 19th Century, they arrived in a place that already had a specific legal imprint placed upon it—both formally and informally. Whatever their origins, and many were only recent immigrants to the United States, their relationship with this new western landscape was already structured in a particular way. For several decades by that point, the custom, and then formal law, of the region was one that preferred the extraction or appropriation of water from natural water courses for its use elsewhere. Although all uses of water were limited to the extent they could be applied to a beneficial use, the beneficial uses of water were themselves constrained. In the Idaho Constitution, a hierarchy of beneficial uses was formalized, beginning with domestic uses, then agriculture followed by manufacturing, except in mining districts where mining superseded all but domestic uses. 

Tuesday, March 7, 2017

Putting the Trump environmental transition in perspective

William Ruckelshaus, the first time around
Following today's post by Craig Oren on precedents from the Reagan era for Trump's plans to roll back environmental regulation (on which see also William Ruckelshaus's piece from yesterday's NY Times), I'm also re-posting an interesting call originally posted on H-Environment:
On behalf of a new group of scholars, the Environmental Data and Governance Initiative, I'd like to invite the participation of environmental historians in a a project we're undertaking.   As part of a report we are preparing on the first 100 days of the Trump Administration, we're hoping to offer some historical and comparative perspective on what will have transpired.  I'd welcome your help, first of all, with a review of the relevant historical literature.  Either as "reply" to this post or through email, could you please send citations of insightful articles, book chapters or book--with a summary of contents and argument--on the following topics?
1. Accounts and analysis of the environmental dimensions of the U.S. presidential transition to Ronald Reagan
2. Accounts and analysis of the environmental dimensions of the Canadian transition to Stephen Harper
3. Nominations, with a citation, of any other environmental transitions of a federal government that you think pertinent
All replies and a summary are going to be posted in the new H-Commons list H-Envirohealth.   If you prefer emailing, please send to chrissellersedgi@gmail.com and/or trinberg@gmail.com.   
If you'd also like to get further involved with our group, please let us know.  Plenty of good work to do, and we welcome new energy and ideas.
Chris Sellers for the Environmental Data and Governance Initiative https://envirodatagov.org/

The Trump environmental transition

After a pleasant interlude in medieval English forests, we return to recent history with a recent post by Craig Oren on RegBlog. After laying out some of the possible deregulatory moves we will see from the Trump administration, Oren takes us back in time:
We must remember 1981, when the Reagan Administration came into power. Its choice for EPA administrator was Anne Gorsuch [Neil Gorsuch's mother-DS], who had little experience in environmental matters. Lobbyists seeking deregulation initially had much influence on the agency. During her short-lived tenure, a draft emerged of proposed amendments that would have eviscerated the Clean Air Act, much to the horror of environmental groups. Gorsuch also repeatedly weakened EPA’s enforcement office. Gorsuch warred with the agency’s career staff: a number of high-level executives were transferred—and some lost their jobs altogether—as punishment for not being sufficiently compliant with the Administration’s priorities.
Gorsuch at her farewell news conference
Capitol Hill looked unpromising, too, during the Reagan years. Then-Representative John Dingell (D-Mich.)—a firm environmentalist, but also someone who was concerned with the interests of auto companies, which employed many of the constituents in his Detroit congressional district—joined with industry and Republicans to put together a package of weakening amendments to the Clean Air Act, including a rollback of auto-emission standards l. And a so-called regulatory reform bill, designed to hamstring agencies from protecting public health and the environment, seemed in 1982 to have a considerable chance for some time of being enacted.

Sunday, March 5, 2017

And yet more forest law

While we're on the topic, I missed this when it was posted a couple of years ago: Nicholas Robinson's "The Charter of the Forest: Evolving Human Rights in Nature" (in Magna Carta and the Rule of Law (Daniel Barstow Magraw et al., eds., ABA, 2014). The abstract:
Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Wednesday, March 1, 2017

More forest law

Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):
The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.
William the Conqueror, the Bayeux Tapestry