Sunday, March 18, 2018

The Laws Relating to Salmon Fisheries in Great Britain (1866)

This week's addition to the digital library of historical environmental law is Thomas Baker's The Laws Relating to Salmon Fisheries in Great Britain, published in London by Horace Cox in 1866. Baker, the title page tells us, was a barrister of the Inner Temple and the Salmon Fisheries Office, and also the author of works on public health law. In the preface to the work Baker explained the need for a work on salmon law:
The Salmon Fisheries of this country have, by long neglect, become greatly injured. Poachers, thoughtless anglers, ignorant fishermen, and, above all, the abuses arising from the use of fixed engines, and the loose manner in which the close seasons were fixed, threatened the total destruction of the fish. To remedy this state of things, several statutes have at length been passed, applicable to Great Britain.
The first pages of the work proper have this Python-esque clarification:
To prevent any misapprehension, it is defined [by the Salmon Fishery Act of 1861] that the word " salmon" includes all migratory fish of the genus salmon, whether known by the names salmon, cock or kipper, kelt, laurel, girling, grilse, botcher, blue cock, blue pole, fork tail, mort, peal, herring peal, May peal, pugg peal, harvest cock, sea trout, white trout, sewin, buntling, guiniad, tubs, yellow fin, sprod, herling, whiting, bull trout, whitling, scurf, burn tail, fry, samlet, smolt, smelt, skirling or scarling, parr, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other local name; and that the expression "young of salmon" includes all young of the salmon species, whether known by the names of fry, samlet, smolt, smelt, skirling or skarling, par, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other name, local or otherwise...
On a more serious note, the work shows that the feasibility principle (or best available technology) was part of Victorian fisheries law:
To protect the fish from poisonous substances it is provided that every person who permits to flow, or permits to be put into any waters containing salmon, or tributaries thereof, any liquid or solid matter, as to cause the waters to poison or kill fish, will incur upon the first conviction a penalty not exceeding five pounds....  But no person will be subject to these penalties for any act done in the exercise of any right, if he prove that he has used the best practicable means, within a reasonable cost, to render harmless the matter so permitted to flow or to be put into waters.... It is obvious that, for preventing the destruction of fish, a mining company realising an immense income might reasonably be called upon to expend a much larger sum than an individual proprietor of a small paper-mill...

Friday, March 16, 2018

Property and water in Sasanian and early Islamic Iraq

Last August's Environment and History had an article by Michele Campopiano, "Cooperation and Private Enterprise in Water Management in Iraq: Continuity and Change between the Sasanian and Early Islamic Periods (Sixth to Tenth Centuries)". The article has a lot on the property system of the Sasanians and its relationship to water management. The abstract:
This article shows that the management of water resources in Late Sasanian and Early Islamic Iraq (sixth to tenth centuries ad) implied the participation of local communities and the mutual cooperation of landholders. The organisation of water management in the Late Sasanian Period (sixth to seventh centuries) depended on a highly complex system of interaction between local communities, aristocratic rulers and the imperial bureaucracy. This interaction allowed the government to gather information from different regions of the empire and to understand the needs of the different stakeholders. As such, the system provided a favourable institutional framework for the expansion of irrigated agriculture. The system changed when landholding conditions were transformed in the Early Islamic period, during the ninth century. These institutional transformations allowed the influence of a group of tax-farmers and merchant-bankers to increase. Irrigation policies were therefore bent to the interests of these new elites, which often lay in short-term gains rather than in long-term success. The article suggests that, in the long run, these socio-economic and institutional changes contributed substantially to the breakdown of the agricultural system in Ancient Iraq.
The dry bed of the Nahrawan Canal near Samarra, photographed by Gertrude Bell in 1909

Wednesday, March 14, 2018

Environmentalism and racism

Michael Wise reviewed Miles Powell's Vanishing America: Species Extinction, Racial Peril, and the Origins of Conservation (Harvard UP, 2016) in October's Environmental History. From the review:
As environmental historians, our frequent assertion that “humans are a part of nature” often comes with little recognition of the fact that slave owners, eugenicists, and a variety of other white supremacists insisted on the very same thing for generations before we first noticed a trouble with wilderness. Miles A. Powell’s Vanishing America directly assesses the converging project of American race-making and American environmentalism over the last two centuries, and it does so with sophistication and uncompromising clarity. The troubling stories that Powell uncovers implicate many of the founding figures of American environmental thought within a tradition of white nationalism that positioned the problem of species extinction as a symptom and symbol of America’s racial degeneration.
Far from existing at the fringes of national discussions over the historical relationships between humans, nature, and extinction, Powell reveals how ideas about race rested at their very center. George Perkins Marsh, for instance, in the decade after the Civil War, claimed that the Anglo-Saxon race reached its zenith in America as a result of “pioneer experiences” that wrought civilization from the wilderness, and he feared that this white racial stock would fall victim to its own successes as it continued to consume nature through the nation’s industrial metabolisms. Marsh’s connection between the destruction of animal species and the loss of white racial virility anticipated the more familiar anxieties of “race suicide” penned by Madison Grant, William Temple Hornaday, and Theodore Roosevelt by more than a generation. Likewise, in the wake of the frontier’s passing, Frederick Jackson Turner summoned evolutionary theory in tirades against immigrants to the United States, fearing that the naturally selected adaptations of Jews, in particular, to endure “the unsanitary and indecent conditions of a dangerously crowded population,” equipped Jewish immigrants as a sort of invasive species, able to outcompete and exterminate native-born Americans, despite being “a people of exceptionally stunted and deficient lung capacity” (p. 53). Even Aldo Leopold’s classic statements on carrying capacity and predatory–prey relationships come under Powell’s insistent scrutiny, as a final chapter demonstrates the centrality of Leopold’s scholarship to the neo-Malthusian human ecologies of extinction proposed by his friends, William Vogt and Paul Ehrlich. These and other stories provide ample evidence of the significant ways that ideas about race informed ideas about the environment, and, in particular, how white anxieties about species extinction aligned with fears of what the eugenicist, Klansman, and Harvard-educated historian Lothrop Stoddard termed, in 1920, “the rising tide of color.” By the middle of the twentieth century, these white supremacist concerns over race and nature carved, according to Powell, “an enduring divide between America’s environmental movement and the nation’s non-white citizenry” (p. 163).
For more on this topic, see here and here.

Sunday, March 11, 2018

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:
The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.
The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.
It seems that Toulmin Smith's anti-regulatory agenda also made him something of an cholera skeptic:

Friday, March 9, 2018

Ghostworkers and Greens

October's Environmental History had a review by Erik Loomis of Adam Tompkins's Ghostworkers and Greens: The Cooperative Campaigns of Farmworkers and Environmentalists for Pesticide Reform (Cornell UP, 2016). Tompkins's book seems to add to a growing body of work on the labor movement as a force behind important developments in environmental regulation. From the review:
Because legislation excluded agricultural workers from the New Deal’s labor protections, farmworkers lacked political power, forcing them to seek alliances with middle-class organizations to win their battles and protect themselves from the chemicals used by growers. Environmental organizations needed farmworkers to counter accusations of being anti-worker and to ground their claims in the lived experiences of the most affected populations. The UFW’s 1970 grape contract included provisions that banned growers from using chlorinated hydrocarbons such as DDT and dieldrin. This laid critical groundwork for environmental groups’ final push for an EPA ban on DDT in 1972. As the 1970s went on, the Sierra Club and other leading environmental organizations developed a growing awareness of social justice and believed they had a natural alliance with farmworkers. This can be overstated, as the 1990 letter sent by the Southwest Organizing Project to major environmental organizing accusing them of “racist and exclusionary practices” demonstrates. Perhaps Tompkins could have evaluated these accusations in the context of his work on environmentalist work with farmworkers, but he does not.
Three later chapters on state-level activism in Arizona, California, and Florida are where Tompkins digs deep into the details of coalition building. In Arizona, years went by with suburban white environmentalists and rural Latino farmworkers missing each other as they each went through waves of activism over pesticides. Finally, the two groups built a meaningful alliance after agricultural pesticide drift threatened expanding suburbs in the mid-1980s, leading to the Arizona Environmental Quality Act in 1986. In California, both groups fought Governor George Deukmejian’s deregulation efforts in the 1980s, but often with different priorities that hampered close cooperation, even as good relationships between them were cultivated and maintained. Finally, Tompkins closes the book with an examination of how farmworkers and environmentalists worked together in Florida and California against methyl bromide after growers’ associations launched a battle to resist the limitations on its use the United States agreed to in the Montreal Protocol in 1987 to fight ozone depletion. Greens and workers could not completely counter the growers’ power, but their work did raise public awareness about the chemical and led to growers seeking alternatives, even as it is still used today. 

Tuesday, March 6, 2018

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:
early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.
Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:
"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Sunday, March 4, 2018

Digital Library V: A History of the Foreshore and the Law Relating Thereto (1888)

In the common-law world, historical and legal argument are frequently intertwined, a phenomenon reflected in the title of this week's addition to the digital library of historical environmental law, Stuart A. Moore's A History of the Foreshore and the Law Relating Thereto, published in London by Stevens & Haynes in 1888 (available on the Internet Archive and in Gale's The Making of Modern Law).

Moore's work was part of a wave of antiquarian interest in early writings on property rights in the seashore (today this topic would be labeled "public trust doctrine") that seems to have been motivated largely by legal and economic issues at stake during Britain's industrial revolution. So in addition to his treatment of a legal manuscript by the Elizabethan-era mathematician Thomas Digges and other early sources, Moore reproduced in his work "A New Treatise by Sir Matthew Hale, from a MS. in his Handwriting", which Moore believed to be an early version of the influential De Jure Maris and other works by Hale published by Francis Hargrave in the late eighteenth century. And, as Moore explained in his introduction, the whole work was born out of a project to issue a new edition of Robert Gream Hall's Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, first published in 1830:

Friday, March 2, 2018

Grassroots environmentalism

October's Environmental History carried a review by Robert Gioielli of Cody Ferguson's This Is Our Land: Grassroots Environmentalism in the Late Twentieth Century (Rutgers UP, 2015). Gioielli writes that the book's case studies of local environmental movements
show the importance of the flowering of grassroots activism after the “regulatory reform revolution” of the 1970s when American citizens had access to new avenues of environmental protest via federal legislation. Far away from the large centralized environmental groups in Washington, D.C., to these activists, environmental issues were as much about the future of local communities, good governance, and justice as they were about the health of ecological systems. Ferguson also contends that these stories show how “environmental and democratic reforms were intertwined in the late twentieth century” (p. 6).
The book begins with the Northern Plains Resource Council, a group of Montana residents formed in the 1970s to prevent coal strip mining that eventually expanded to deal with other local issues. Ferguson was formerly a professional lobbyist for the council, and clearly his work with the group was in many ways the genesis for this project. Many of its founders and most dedicated members were farmers and ranchers, deeply conservative both politically and culturally, not “wild eyed and fuzzy headed” environmentalists (p. 68). Their activism was sparked by the federal North Central Power Study that called for the massive development of Northern Plains energy resources that would have had a devastating impact on their farms, local air and water quality, and local culture.
Ferguson has an abiding respect for the members of the council, and he tells their story with verve and plenty of historical context. The narrative is based on sound primary and secondary research but also a significant number of oral history interviews. These strengths continue into the other case studies. The next two chapters examine Tucson’s Southwest Environmental Service that primarily fought against air pollution caused by Arizona’s copper smelter industry. The final part of the book looks at Save Our Cumberland Mountains (SOCM), an eastern Tennessee organization that began by fighting for strip mining regulations but expanded to work on a number of regional environmental issues. These case studies are the strength of the book, with Ferguson exploring the political and social forces behind the various environmental problems. Although sometimes the narrative gets bogged down in blow-by-blow discussions of legislative and regulatory fights, in general it is exceptionally well written and fast paced.

Tuesday, February 27, 2018

The World Heritage Convention

The website of the Institut Heritage Studies has three reviews of the oddly titled (or translated) 40 Years World Heritage Convention: Popularizing the Protection of Cultural and Natural Heritage by Marie-Theres Albert and Birgitta Ringbeck (De Gruyter, 2015). Some excerpts from Klaus H├╝fner's review:
The Convention for the Protection of Cultural and Natural Heritage (World Heritage Convention) was adopted by the General Conference of UNESCO in November 1972, but only came into force in 1975. The Convention, to date ratified by 191 States, belongs without doubt to the most successful international legal documents; it enjoys a tremendous popularity not only in Germany but also worldwide.
The volume consists of seven chapters. The introductory Chapter 1 postulates the preservation of heritage as “an exceptional political, participatory and interdisciplinary act” (p. 2). It follows that it is necessary both in the nomination as well as in measures for the preservation of cultural and natural sites that, “as far as possible, all groups of affected peoples at the local, national or international levels” be involved (p. 3). This demand for critical and constructive participation runs like a red thread through the individual chapters. Another critical remark, on which following chapters go into depth, refers to the Eurocentric predominance. The authors speak of a “glaring imbalance” between the objectives and the implementation of the Convention when one considers the number of inscribed sites in Europe and North America compared to the rest of the world (pp. 5-9). 
Chapter 3 discusses in more detail the evolution of the World Heritage Convention and the associated perspective changes over time, among which four phases are distinguished, which moved away from the initial strict, conservative interpretation towards a popularization of World Heritage. Already in the first phase (1978-1991) the imbalance between “Europe and the rest of the world” (p. 60) could be seen in inscriptions, which, in spite of the increase in the total number of inscriptions in the following three phases up until 2013, still hovered around 50 percent. In 1994, UNESCO finally adopted a Global Strategy to reduce the geographical and cultural imbalances. It involved the question of “how to integrate the visions of cultural diversity as defined in the Convention in the form of intercultural, religious, authentic or social views of diversity into the overall aspect of heritage” (p. 84). But the imbalance continued, the lack of financial and human resources needed to successfully complete the nomination process being suggested as a key reason (p. 93). 

Sunday, February 25, 2018

Digital library IV: Bartolus's Tractatus de fluminibus seu Tyberiadis

After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the Tractatus de fluminibus seu Tyberiadis (1355, 1576 edition (source of the images in this post) here) of the great medieval Italian jurist Bartolus of Saxoferrato.

As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship:
This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near Perugia above the Tiber, I began to contemplate the bends of the Tiber, its alluvion, the islands arising in the river, the changes of the river-bed as well as a host of unanswered questions which I had come across in practice. There were also other matters, which came to mind from my own observance of the river. I began to consider in various ways what the legal position was, not believing that I would take it any further, lest not to spoil my vacation, the reason why I had come. And thus while I slept that night, I had a vision near dawn that a certain man, whose countenance I found gentle, came to me and he said the following: "Write down what you have begun to think about and since there is a need for illustration, provide mathematical diagrams: Look! I have brought you a reed pen to measure and draw circles as well as a ruler to draw lines and to construct diagrams". I told him to spare me from illustrating legal matters with geometrical diagrams, since were I to do that, there would be many more scoffers than supporters. Then, looking at me with a troubled countenance, he said: "Bartolus, I know that you have something (in you) of God, but are you indeed afraid to be ridiculed for your service?