Tuesday, November 21, 2017

The Water Resources Research Act

The latest issue of Water History has a few articles with legal aspects on which I plan to post. The first is "Instituting water research: the Water Resources Research Act (1964) and the Idaho Water Resources Research Institute", by Adam M. Sowards and Brynn M. Lacabanne. The abstract:
In 1964, Congress passed the Water Resources Research Act (WRRA) and created state research institutes to pursue practical research for the nation’s growing water problems. The Idaho Water Resources Research Institute (IWRRI), initiated as part of WRRA, implemented its research program with multidisciplinary specialists across Idaho. Collaborating with public and private partners, IWRRI advanced research that reflected distinct political, economic, and environmental needs at a time when the state required more rigorous water planning. Case studies presented here include research on understanding and valuing wild and scenic rivers, tracing and mitigating water pollution from industrial mining, and improving efficiency and promoting maximization in irrigation among rural landscapes. Scientists developed new methods and advised on ways to improve water quality. Tracing IWRRI’s research demonstrates how concerns about wilderness, pollution, and efficiency developed within a research regime determined to improve water resources management. Each element reflected historical forces and social values, something only occasionally acknowledged by the researchers but nonetheless central to their efforts. In this way, IWRRI shines analytical light on state water use and the policy and scientific methods used to comprehend, mitigate, and manage water resources. The history of institutes like IWRRI provide a neglected, but useful, avenue to explore the powerful ways contemporary legal, political, and economic concerns shaped scientific research agendas, reminding us of the larger social context in which scientific research occurs.

Thursday, November 16, 2017

Trump, Carl Schmitt, and climate change denial

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt". Some excerpts:
We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes.
The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past.
As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism.
In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era. 
Two principles of Schmitt’s writing are especially relevant to understanding the place of climate change denial in Trumpism’s historical consciousness, and they’re worth discussing at some length. Each principle links Trumpian domestic and international politics as two sides of the same philosophical coin.
The political is inviolable
First, for Schmitt a community’s ability to draw the friend-enemy distinction can—by definition—brook no conceptual or institutional restraint.
Most notably, the distinction can’t be predicated on other domains of human value, such as morals, aesthetics, or economics. Ideals from these fields may be used to enhance public feelings of opposition. Enemies are regularly portrayed as ugly, for instance—a practice at which Trump personally excels.
But the object of a community’s political dissociation is made on the basis of criteria independent from judgments about good and evil, beauty and ugliness, or profit and loss.
Liberals today regularly violate this principle. They seek to circumscribe national sovereignty within generally-applicable legal norms such as individual human dignity—consider Article I of the German Basic Law—and to restrict it through institutions like the United Nations.
Schmitt views such liberal projects not simply as naïve, but also as a recipe for social chaos at home and unrestrained, imperialistic violence abroad. 

Tuesday, November 14, 2017

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:
This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Friday, November 10, 2017

Animal welfare law in Scotland

Daniel James Carr recently posted "The Historical Development of Animal Welfare Law in Nineteenth Century Scotland". The abstract:
This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Sunday, November 5, 2017

London's smoke regulation

The Court of Aldermen and Common Council of the City of London (1780)
Last week's Reviews in History posted a review by Elly Robson of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016, recently out in paperback). (For an earlier review see here.) From the review:
Cavert is particularly strong on the complex role of political and legal institutions – both local and national – in managing coal supply and regulating smoke. In his account, the politics of coal and smoke was a politics of governance. Chapter five, ‘Nuisance and neighbours’, deals with the legal category of ‘nuisance’ to cast light on how conflict over pollution was defined and mediated. In it, Calvert investigates a smorgasbord of relatively ineffective litigious avenues for pursuing redress against industrial polluters who infringed on royal or individual property and health. Law Reports form the mainstay of the chapter and Cavert’s frustration is evident when he describes searching for nuisance cases in Westminster court archives, including 10,000 pleas in King’s Bench, as akin to ‘looking for needles in large and messy haystacks’. Yet he casts his net wide, examining an impressive array of London institutions, including the Fishmongers Company, the Court of Aldermen, and the Wardmote Courts. He consequently has an acute sense of the regulative capacity of different, interlocking jurisdictions, but does not present them as totalising in influence. Instead his emphasis falls on their limitations. Private contracts by landlords were far more effective than common law courts in excluding noxious trades from certain parts of the city, particularly in creating an elite non-industrial zone in genteel west London. This chapter tells us more about institutions and their limits than it does about the ways in which smoke sparked neighbourly negotiation. Royal and aristocratic attempts to limit air pollution in their vicinity have left a more prominent archival trace. However, further light may be cast on environmental conflict between more lowly urban neighbours through further examination of legal depositions, which tend to be well catalogued and have provided a rich lens for early modern historians examining rural disputes over resources.
A concern with governance recurs in part three, where several chapters examine the role of the state in regulating London’s coal supply and mediating the competing claims of civic governors, coal suppliers, the military, the urban poor, merchants, and industries. Efforts to ensure a constant flow of coal to the capital were more energetically pursued than attempts to alleviate pollution, because the former aligned with the priorities of the fiscal-military state: taxation, naval power, social stability, and economic development. Although there was never a state monopoly over the coal trade, the state gathered information through taxes on coal imports and intervened in markets by granting and revoking charters. Tensions could arise, however, between state revenues and economic growth, as merchants mobilised to lobby against rising coal taxes. Similarly, in times of war, able seamen transporting coal down the coast became a valued resource and were vulnerable to naval impressment, forcing the government to balance external military dangers with the threat that fuel scarcity posed to internal social order. 

Friday, November 3, 2017

Postwar America's greatest environmentalist

More on working-class environmentalism and the law (see, most recently, here): Jacobin recently ran a piece by Connor Kilpatrick claiming that "Postwar America’s greatest environmentalist was a labor leader". There's a lot here also about politics, religion, climate skepticism and more. Some excerpts:
Today, the AFL-CIO lobbies Congress to pass the Keystone XL pipeline while noted NASA climate scientist James Hansen, one of the first to link global warming to fossil fuels, is repeatedly arrested for protesting such projects. And while in 2017, the idea that the interests between wonky environmentalists and jobs-focused trade unionists would diverge seems like common sense, it’s only because the bad guys won.
But it wasn’t a preordained victory. For nearly a decade in the 1960s and ’70s, environmentalism seemed to be on the cusp of a popular reckoning against the powers of capital. And it found an ally in the labor movement which, for a few years, looked like it might be able to not only cling to life but find a way back into the heart of American society.
[Tony] Mazzocchi and his union, the Oil, Chemical and Atomic Workers International (OCAW), were the primary muscle behind the 1970 Occupational Safety and Health Act (OSHA), signed into law by Richard Nixon. Looking back on that victory, which mobilized both labor and the burgeoning environmental movement, Mazzocchi said: “We have demonstrated that an unpopular idea can be generated into a powerful political program that’ll reignite the consciousness of the American people.”

Tuesday, October 31, 2017

Colonial aspects of international environmental law

Signing the International Convention for the Regulation of Whaling, 1946
Douglas de Castro recently posted "The Colonial Aspects of the International Environmental Law – Treaties as Promoters of Continuous Structural Violence". This is a topic that has come up before in work by Yoriko Otomo and others. De Castro's abstract:
The formation of international institutions in the twentieth century occurs under a scenario marked by the rule of colonialism and imperialism. Thus, instead of reducing inequalities in the world system, international institutions reproduce a prevalent logic of material and subjective discrimination based on a colonialist ideology marked by violence, which is communicated in a certain way so that it can justify its importance and legitimacy. The colonial violence is perpetuated under the form of symbolic violence manifested in the language that imposes a universal meaning and systemic violence that manifests itself in the "perfect" functioning of the world economic and political system as the ultimate form of development. One of the perverse and subtle dimensions of this violence is observed in the emergence of the International Environmental Law in terms of metanarratives that excludes minorities and perceptions other than the ones propagated by international institutions. The main objective of this article is identifying the dynamics in the formation of environmental treaties leading to standard results of discursive practices that feeds the process of dependence and legitimation marked by colonial ruling and structural violence. The methodological approach relies on the critical theory tenets to expose the non-emancipatory features of the current International Environmental Law by the application of the socio-legal approach to the treaties that consists of the text analysis (law), subtext (the moral aspects of the law – deep or implicit meanings), and context (the undeniable connection between law and reality). The empirical dimension is developed with the help of the computer assisted qualitative data analysis software (CADQAS) called ATLAS.ti.

Sunday, October 29, 2017

Policy symbolism and regulatory standardization

Toronto Terminals Railway Central Heating Plant, 1929
Working through my backlog, I recently came across Owen Temby's 2015 article in Planning Perspectives, "Policy symbolism and air pollution in Toronto and Ontario, 1963–1967". The article has an interesting take on the secular movement of environmental regulation from the local level to higher levels of government. The argument that industry had more influence at the provincial level than at the municipal level is interesting since environmental groups are also often assumed to prefer higher levels of government, where they can better concentrate the diffuse environmental interests of the public. The article also cuts against the assumption that local regulation was relatively weak, and that the national-level regulation of the 1960s and later was some kind of victory for environmental interests. Food for thought.

The abstract:
In 1967, jurisdiction over clean air policy in Toronto and the rest of Ontario's municipalities was transferred to the provincial government. Even though the municipalities had obtained extensive authority to regulate air pollution within their own boundaries nine years earlier, the vast majority (apart from Toronto) had not developed clean air programmes. Yet air pollution was a highly salient issue that aroused considerable public attention and local activism. This paper provides an account of the provincial takeover in air pollution, focusing on two factors enabling the Ontario government to pass two statutes transferring authority from municipalities to the provincial Department of Health. First, despite resistance in Toronto, the policy change was favoured by industry, which had more influence in the provincial government than across municipalities. Second, the inherently symbolic features of clean air policy allowed the provincial government to satisfy public demand for action while not appreciably creating more stringent regulations. These findings are consistent with studies of US clean air policy displaying a similar tendency among industry to support regulatory standardization across broad political scales.

Thursday, October 26, 2017

Aboriginal water rights

Aboriginal men obtain water from mallee root at Yalata in South Australia, 1981
(National Library of Australia)
Peter D. Burdon, Georgina Drew, Matthew T. Stubbs, Adam Webster, and Marcus Barber recently posted "Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law". The abstract:
This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Tuesday, October 24, 2017

The Cold War context of "risk"

The Journal of Policy History recently published Linda Nash's "From Safety to Risk: The Cold War Contexts of American Environmental Policy". From the introduction (notes omitted):
The late twentieth century marked the rise of “risk society,” to use Ulrich Beck’s well-known term. In Beck’s account, the seemingly endless proliferation of material risks to health and environmental integrity is the outcome of late capitalist modernization, a proliferation that society’s institutions are completely unable to control or address. But without disputing the fact that industrialization has introduced a multitude of new threats to both bodies and environments, their conceptualization as “risks”—rather than merely as “dangers”—was more than a choice of words; it marked both an important policy change and a crucial cultural and political shift.
The dominance of risk discourse in environmental and health policy has not gone unchallenged. Since its inception in the 1970s, the assumptions and methods of regulatory risk assessment have been critiqued and interrogated from a number of perspectives. The social science literature on the topic is vast, much of it quite nuanced and attuned to the social, cultural, and political contexts that structure both lay people’s and experts’ perception of risk. But most who write about risk do not seriously question the term itself, nor do they consider its history. To the contrary, most scholars treat the language of “risk” ahistorically, often conflating “risk” with any kind of danger. Existing historical treatments have been narrowly framed as studies of a single area of federal law and policy. In these accounts, the rise of risk is portrayed either as a necessary maturation of environmental policy that was driven by greater understanding of the issues and improvements in science and technology, or, alternatively, as a triumph of industry and business-friendly politicians in opposing federal regulations. In all these accounts, the focus has been on government actors and, to a lesser extent, industry representatives.
This article builds upon the existing historical work but offers a somewhat broader institutional and intellectual history of risk in the postwar period, drawing particularly on scholarship that has emphasized the role of the Cold War in shaping American social and political thought across the second half of the twentieth century. Rather than locating the shift toward risk in techno-scientific developments or solely in conservative politics, I emphasize the role of intellectuals committed to new modes of formalized decision making and their influence among a new generation of agency managers. Scholars of environmental politics have paid little attention to the intellectual contexts that influenced the development of environmental policy. At the same time, historical accounts of systems analysis and its key institutions have emphasized their influence in defense rather than domestic policy, while their impact on environmental policy has been left almost completely unexplored.
Moreover, when the institutional and intellectual contexts of risk discourse are examined, it emerges not as a logical response to advances in science or technology, nor as simply a response to the challenges of “modernity”; rather, it depended upon the particular political and material forms that modernity took in the post–World War II United States. While acknowledging that politics played an important role in the ultimate adoption of the risk framework, the core of my argument is that risk thinking marked a radical departure from previous approaches to environmental regulation—from an approach based in biology and assumptions about human rights to one based in economics—and that the roots of this shift lay in Cold War defense planning and the insular academic and intellectual worlds it spawned.