Monday, October 17, 2016

Environmental regulation in colonial Zimbabwe

The latest Environment and History has an article by Muchaparara Musemwa, "Sic utere tuo ut alienam non laedas. From Wanton Destruction of Timber Forests to Environmentalism: The Rise of Colonial Environmental and 'Sustainability' Practices in Colonial Zimbabwe, 1938-1961". The abstract:
This article examines the roots of colonial Zimbabwe’s culture of environmentalism – described, here, as increasing social awareness of the rapid deterioration of the environment and the pressing need to take decisive action to counteract it. It argues that only a one-sided story – namely colonial conservationist discourses and practices especially as they pertained to African reserves in colonial Zimbabwe and other parts of Southern and Eastern Africa – has been the object of myriad historical analyses. Yet, there is a corresponding story that seems to have fallen between the seams of history as it is rarely articulated in Zimbabwean historiography in a systematic and comprehensive way, i.e. the origins of a colonial environmentalism – one focused more on reinforcing white settlers’ sustainable uses of natural resources and less on Africans. It chronicles how the once verdant landscapes of colonial Zimbabwe were transformed into near waste in the first four decades of colonial occupation from 1890; highlights how the diverse voices of environmental concern that appeared at the time compelled the colonial Zimbabwean state finally to institute the Commission of Inquiry into the Preservation of the Natural Resources of the Colony of Southern Rhodesia in 1938; and examines how this Commission’s recommendations became the basis for the establishment of a number of institutional regulatory systems to initiate an efficiency-oriented approach to the management of the colony’s natural resources. It highlights how the notion of ‘sustainability’ was infused into the Commission’s Report and became such a powerful trope that it laid the basis for subsequent institutional and legal environmental resource management in colonial Zimbabwe, surviving intact into the first two decades of postcolonial rule. The article further explores how the farmer–miner conflict unfolded beyond the McIlwaine Commission and how the Natural Resources Board finally led to a successful resolution of the conflict in 1961. The McIlwaine Commission Report attests to rising social and environmental concern at the ongoing ecological decline of the colony’s resources, resulting in the realisation of a resolute response in order to guarantee the sustainability and welfare of white settler society.
L. F. Hughes, Back Page, Umtali and the Eastern Districts of Southern Rhodesia (1953)

Wednesday, October 12, 2016

A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action
A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.

The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)

Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):
The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.
To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.
But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.

Sunday, October 9, 2016

French forest law

The latest American Historical Review has a review by Jeff Horn of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015). Horn writes:
Matteson is at pains to demonstrate that over the long term, “peasant communities and practitioners of customary rights” retained “significant control over their forests” “through tenacity, wiliness, and sheer violence” (xv).
In an introduction, six long but fast-moving chapters, and a lengthy epilogue, Matteson considers the relationship of states, various types of property owners (such as seigneurs), and communities to forests, their management, and their economic exploitation.... Conservation is a major theme, particularly its intellectual foundations in Enlightened natural philosophy that Matteson refers to as a “formative period in the development of French environmental discourse and conservationist policy” (50). These ideas are then traced across subsequent regimes. Shifts in state oversight of the forests, mostly negative, form the spine of this book. Jean-Baptiste Colbert’s 1669 forest ordinance is at the heart of the first chapter, the “failure” of the changes made by the Revolutionaries in 1789–1791 is the focus of chapter 4, and the background and reception of the Forest Code of 1827 are the subjects of chapters 5 and 6.
Matteson makes three main arguments. First, she asserts that “peasant opposition to state forest policies produced greater gains than previously appreciated, even when it was crushed at the time.” Matteson also claims that the French environmental conservation had less to do with ecology “than with extending state power, suppressing sedition, and substituting commercial exploitation for communal utility.” Third, she maintains that “local, community-based arrangements for the management and use of natural resources … have been unfairly maligned, both in the historiography of the Revolution and in contemporary policymaking” (10–11).... 

Thursday, September 29, 2016

When loggers were green

The Forest History Society awarded its 2016 Blegen Award for the best article on forest and conservation history to Erik Loomis for his "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948", published in Western Historical Quarterly.

Soleduck Falls shelter, Olympic National Park, constructed 1939
(M. Stupich, courtesy of National Park Service, Pacific Northwest Region)
The IWA was a strong supporter of the creation of the park for protecting old-growth forest

There's a lot of law in the article, though the union was often on the losing side. The opening paragraphs:
In April 1939, Harold Pritchett, president of the International Woodworkers of America (IWA), went on radio station KIRO in Seattle to explain his union’s program for forest conservation. Pritchett bluntly attacked the timber industry for its wasteful practices, noting, “under the present policy of timber destruction three feet of Northwest timber is being used for every new foot being grown.” Saying the nation’s forests were too important to serve corporate masters, Pritchett demanded a government-led reforestation program that would hire unemployed loggers and recharge the timber resource. He argued for federal policies mandating selective logging rather than clear-cutting large patches of forest. Pritchett justified federal intervention by comparing it to the New Deal’s expansion of government authority into public utilities and banking as well as the passage of the Social Security Act. Only through “initiating a forest program that is based on the needs and also the responsibilities of the forest land owners” under “federal control of forest cutting practices,” Pritchett declared, could the forests of the Northwest remain productive for future generations.

Sunday, September 25, 2016

Economics and property rights in the Gold Rush

I just came across a review that I wrote and submitted a while ago for the Business History Review on Mark Kanazawa's Golden Rules: The Origins of California Water Law in the Gold Rush (U. Chicago Press, 2015). I had thought the editors would inform me when it was published... Anyway, here's what I wrote:
There's still gold in them thar hills. A century and a half after the torrent of gold-seekers to the California Sierras dried up, the flow of historical studies of the development of property rights on the gold frontier continues unabated. This work of detailed scholarship by Mark Kanazawa, an economic historian who has published extensively on water law in the western United States, is the latest entry into the auriferous regions.
Romance and adventure aside, economic and legal historians, along with property theorists, have been drawn to the California gold rush for two main reasons. First, the development of “codes” in the mining camps of the forty-niners provides a colorful case study of the institution of a system of law from scratch. Because government presence and state law were thin on the ground in gold-rush California, the ability of the miners to institute working systems of norms seems to serve as a historical example of successful private ordering. Beyond this, scholars of water law have taken a particular interest in the laws of the diggings, as the system of private rights in water that applies to this day in much of the western United States, known as the appropriation doctrine, is thought to have originated in the gold fields. So miners’ laws have received quite a lot of attention in studies hoping to explain how legal order spontaneously emerged out of chaos and why the miners abrogated the common-law regime of “riparian rights” in water (in which all landholders adjacent to the water source shared it) in favor of appropriation, based on the principle of “first in time, first in right.”
Golden Rules takes an economic approach to understanding the origin and evolution of water law in the California mining region in the decade or so following the discovery of gold at Sutter's Mill. After several substantial introductory chapters laying out the history of California gold mining and the ditch industry that developed to provide the water used in increasingly large and sophisticated mining operations—as well as the economic theories of property and tort he believes explain the historical development of the law—Kanazawa gets down to his analysis in detail. Chapter 5 examines the water rules adopted in the mining camps, arguing that they generally did a good job of promoting mining at an efficient scale. Chapter 6 discusses how economic forces gradually pushed disputes over water from the informal mining camp system to the official courts of the state. Chapter 7 argues that the appropriation doctrine as it developed in the California gold fields was economically efficient. Chapters 8 and 9 turn to legal issues often ignored in both gold rush histories and the legal history of water—the regulation of water quality and damage caused by bursting dams—arguing that with regard to these, too, California law provided efficient solutions.

Tuesday, September 13, 2016

Commissioners of Sewers and early modern English administrative law

sign in Redwick, Monmouthshire (courtesy geograph)
A couple of years ago we noted the publication of Philip Hamburger's controversial Is Administrative Law Unlawful?. Paul Craig recently posted a paper refuting much of Hamburger's historical argument about the supposed lack of administrative law in early modern England, "The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight". One section deals with the Commissioners of Sewers, and as it's relatively short, I'll reproduce it here (leaving out some of the footnotes):
Sidney and Beatrice Webb began their account of the Commissioners of Sewers [p 13] by noting the difficulty faced by the twentieth century observer in appreciating just how much of England had been composed of vast fens and marshes. Therein lies the explanation for the early attention given to drainage and defences against the sea, leading to the Statute of Sewers 1531, which gave statutory foundation for the Commissioners of Sewers and the Courts of Sewers. They resembled in many respects justices of the peace for the counties, albeit with a specialized jurisdiction over rivers, sewers, ditches, bridges, locks, weirs, sea defences and the like. Their jurisdiction was akin to that of a modern environmental agency. This analogy can be pressed further, insofar as the Commissioners of Sewers “combined in themselves, judicial, executive and even legislative powers” [Webbs, 21]. It is with the rulemaking powers that we are presently concerned.
The Statute of Sewers 1531 authorized Commissioners of Sewers to undertake flood defences broadly conceived, and gave them extensive powers to fulfil this remit. They could make individual decisions concerning repairs that were needed to river banks, sea walls, streams, ditches, gutters and the like, and apportion the costs. They were also authorized to make rules. The Commissioners could use the laws and customs of Romney Marsh as a boilerplate, or devise provisions according to their own discretion. They could thus, "[M]ake and ordain Statutes, Ordinances, and Provisions from time to time, as the Case shall require, for the Safeguard, Conservation, Redress, Correction, and Reformation of the Premisses, and of every of them, and the Parts lying to the same, necessary and behoful, after the Laws and Customs of Rumney Marsh in the County of Kent, or otherwise by any Ways or Means after your own Wisdoms and Discretions."
This rule-making capacity was extensive. The 1531 Statute stipulated that the Commissioners’ rules remained effective for the tenure of their office, which at that time was three years, but were ineffective thereafter. This temporal limit was, however, subject to an exception, whereby the rules could retain their binding force if they were “made and ingrossed in Parchment, and certified under the Seals of the said Commissioners into the King's Court of Chancery, and then the King's Royal Assent be had to the same.” 

Friday, September 2, 2016

National parks in the Netherlands

Wolff en Hoeck in de Purmer: Jan van der Heijden (1678) (courtesy SKBL)
Over at Environmental History Resources, Jan Oosthoek recently posted "Cultured nature: The Nature Scenery Act of the Netherlands", based on his podcast interview with Wybren Verstegen, whose article, "The Nature Scenery Act of 1928 in the Netherlands", was published last year in Forest History Today. There's also a video. Oosthoek writes:
When thinking of national parks most people think of famous examples like Yellow Stone and Yosemite in the United States or the Serengeti in Tanzania. These parks are large in scale with an emphasis on wild life conservation and the preservation of scenic landscapes. Human activity and presence are restricted and regulated and people are visitors.
In smaller and densely populated countries like Britain or the Netherlands, the creation of large national parks is complicated. In these countries landscapes are far from natural and humans are part of the fabric of the landscape. For this reason, it is difficult to restrict human access and activities to create national parks.
In the Netherlands nature and human activity are almost inseparable because about half of the country is at or below sea level and is reclaimed or drained. Consequently, the landscape of the Netherlands is mostly the product of human intervention and can therefore be described as a cultural artefact. As a result, formal protection of landscapes and wildlife came late. One of the early attempts to create protected conservation areas came in 1928 with the Natuurschoonwet, freely translated as Nature Scenery Act. This Act was mostly about protecting country houses set in park like settings.
As Oosthoek himself notes in the video, even in the US park landscapes are far from natural. But, as anyone who has visited parks in the US and in Europe knows, there is a big difference in the degree to which parks aspire to a wild or "natural" aesthetic on the two continents, with European parks tending to distinguish far less sharply than their American counterparts between nature and culture.

Friday, August 12, 2016

Environmental views on the US Supreme Court

A year ago we noted Jed Purdy's review of Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014). Now we have Anthony Penna's review of the same in Environmental History. An excerpt:
Jonathan Z. Cannon’s Environment in the Balance argues that the majority of the Supreme Court’s decisions regarding environmental legislation reflected a struggle between competing and conflicting beliefs and values. Environmental laws embraced “an ecological model of the world” (p. 1) that posits interconnections among humans and the natural world and seeks to protect it from potentially harmful human activities across place and time. In contrast, the Supreme Court’s conservative majority during the last forty years (highlighted by the appointment of Associate Justice Scalia in 1986) represented a different set of values and beliefs, stressing individualism, property rights, economic growth, and limited government.
It is difficult to imagine a more complete analysis of the Supreme Court’s conservative direction when interpreting environmental legislation. Chapter 2, “Environmental Law, the Court, and Interpretation,” provides the background for thirty selected cases from a group of 150 significant environmental cases decided between 1970 and 2014 and an interpretive guide for categorizing majority and minority positions. Chapter 3, “Environmental Urgency and Law,” reinforces the author’s thesis that the deep-seated beliefs and values of justices inform their decisions when interpreting environmental laws.
Chapter 4, “Law for the Environmental Other,” explores the Court’s findings when the rights of the other conflicts with human use and benefit. In cases in which species protected by the Endangered Species Act, 1964 and the Marine Mammal Protection Act, 1972 were litigated, the Court rejected arguments that reflected Aldo Leopold’s ecocentric perspective.
In Chapter 5, “Efficiency,” Cannon notes that from 1972 to 2007 the Court resisted using cost-benefit-analysis in environmental and worker safety statutes. 

Wednesday, August 10, 2016

More on Indian treaties

"Salmon Fishing at Chenook", James G. Swan,
in The Northwest Coast; Or, Three Years' Residence in Washington Territory, 1857
Yesterday we posted on Indian treaties in the northeastern US (and Canada); today it's the Northwest. Michael Blumm recently posted "Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration". The abstract:
In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute. 
Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

Tuesday, August 9, 2016

Squirrels, bears, and treaties

Black Squirrel, Stirling Ontario (Robert Taylor)
Loren Michael Mortimer recently posted at Early Canadian History on bear and squirrel migrations across the St. Lawrence River in the late 18th century:
In September of 1759, great armies were on the move through the upper St. Lawrence Valley. Not the military forces under the command of Montcalm and Wolfe en-route to their climactic showdown on the Plains of Abraham, but an army of black bears migrating en-masse southward from Canada into Britain’s Atlantic colonies. During that autumn, newspapers from New England and New York recorded a southern migration of bears, accompanied by an equally mysterious appearance of thousands of black squirrels. Bears were reported in the city of Boston for the first time in a century—a large bear “the size of small cow” was shot on a Boston wharf as it swam across the harbor from Dorchester Neck.
Bears were “spreading mischief” on colonial farms from the New England frontier to the lower Hudson Valley, devouring fields of “Indian corn” and destroying stocks of hogs, sheep, and calves. British army officers bemoaned frequent bear sightings near General Jeffery Amherst’s field headquarters on Lake Champlain. Newspapers printed lurid tales of a bear attacking and eating two children as they picked beans in a field in Brentwood, New Hampshire. One bear reportedly attacked a female colonist walking near her house, but only made off with the “hind part” of her gown. As much as these armies of marauding bears and squirrels vexed Anglo-American colonists, they provided a critical windfall for indigenous hunters residing beyond New England in the Canadian borderlands and the vast St. Lawrence watershed to the north. 
There's a legal angle to this, as well: