Tuesday, February 20, 2018

Compensatory mitigation and neoliberalism

Restored perennial and season marsh and riparian forest
at Wildlands Mitigation Bank, Placer County, California (EPA)
The always interesting Dave Owen recently posted "The Conservative Turn Against Compensatory Mitigation", whose primary subject is the recent turn by conservatives in the US against compensatory mitigation (policies that require parties receiving permits for environmentally harmful activities to compensate by improving environmental conditions elsewhere). Owen also has something to say about the origins of the practice, rejecting the arguments of critics who have portrayed compensatory mitigation as part of a neoliberal, capitalist resurgence:
The proponents of compensatory mitigation reform hardly ever identified their efforts as measures to boost the capitalist system. As one retired departmental employee explained to me, even during the Reagan Administration, debates about compensatory mitigation were driven more by conflicts over regulatory intensity and states’ rights rather than by Milton Friedman-style market ideals. And later reformers’ key goal was to strike a compromise between political mandates to accommodate economic development and legal mandates to protect the environment, and to make permitting decisions in an expedited fashion. Compensatory mitigation policy, in other words, evolved to fulfill agency goals, not to advance a free-market agenda, even though the policies did sometimes bring regulated industries the benefits of expedited and more flexible permitting.
I have to say that I don't find this very convincing, though it is true that compensation mechanisms can serve as a way of balancing interests, as Calabresi and Melamed taught us. First of all, I doubt whether one can get a full and reliable account of agency motivations by interviewing agency sources. Second, as Laleh Khalili points out in a recent interview at Viewpoint, officials and managers often work to advance capitalism without being conscious of it. Finally (and relatedly), I would posit that regulators " driven... by conflicts over regulatory intensity and states’ rights" were in fact often responding to "Milton Friedman-style market ideals" (whether they realized it or not). "States' rights" and "regulatory reform" are ideas the popularity of which in the last few decades owe a lot to business interests, politicians, and intellectuals pushing a neoliberal, capitalist agenda. It is no surprise that "agency goals" meshed with the neoliberal agenda (or that the recent conservative about-face on compensatory mitigation exposes the essential bad faith behind much of "regulatory reform").

Sunday, February 18, 2018

Digital library III: Compendium of Water Pollution Laws (1959)

This week's installment in the digital library of environmental law moves ahead to the twentieth century with Carl E. Geuther's Compendium of Water Pollution Laws, published in 1959 by the Manufacturing Chemists' Association, headquartered in Washington, DC. This was the fifth in a series of "Water Pollution Abatement Manuals" published by the trade organization, evidently with a target audience of engineers, managers, and other non-lawyer employees of the chemical industry.
Geuther, a lawyer, worked at the time for Du Pont Chemicals; he also seems to have represented them and other chemical companies in court at various times.

The Preface explains that the manual is:
a compendium of the laws of the forty-nine states (including the District of Columbia, the Territory of Hawaii, Puerto Rico, and the federal laws of the United States as they pertain to water pollution and water pollution abatement). Statutes and regulations of archaic vintage that are ignored by the water pollution control agencies of the various states are not referred to or set forth herein. Effort has been directed to preparing a practical analysis of the so-called working laws and regulations as they are now being enforced.
As one might suspect, in 1959 it was the states (and in some cases their subdivisions) that had primary responsibility for the issue, though Geuther does briefly survey some federal legislation on the subject, including the Water Pollution Control Act, passed in 1948 and expanded in 1956. (Compare the situation in 1909 here).

Among the states the leaders seem to have been New York and Maryland. The latter's  prominence might at first seem surprising, but it probably reflects the leadership of Abel Wolman in the field. Geuther thought that Mayland's effluent standards were too strict and inflexible. He cites the state's Water Pollution Control Commission's Regulation 4 (enacted in 1948 and revised in 1953):

Thursday, February 15, 2018

25 years of Israeli environmental law?

A strange message hit my email inbox today, advertising an upcoming event hosted by an Israeli law school and a leading Israeli environmental NGO to celebrate 25 years of Israeli environmental law.

I'm more than a little puzzled by this as I'm not sure how exactly they came up with 1993 (or thereabouts) as the beginning of Israeli environmental law. Important environmental statutes, including the Regulation of Trades and Industries Ordinance, 1927; Oil in Navigable Waters Ordinance, 1936; Public Health Ordinance, 1940; Wild Animal Protection Law, 1955; Abatement of Nuisances Law, 1961; and the 1971 water pollution amendments to the Water Law (itself enacted in 1959) all predate 1993 by quite a bit. The Abatement of Environmental Nuisances Law, 1992 more or less fits the timing, but it happens to be a pretty unused (and useless) law. (I've written about a number of these statutes in a book chapter, "A Prolonged Recessional" (Academia and SSRN).
Old Knesset (parliament) building on King George Street, Jerusalem
If court decisions are what the organizers have in mind, the early '90s again seem like an odd place to start, given earlier cases such as the 1959 public trust doctrine case Puterman v AG, a series of 1960s Supreme Court cases on air pollution, and so on.

It may be that the organizers have in mind the founding of said environmental NGO (Adam Teva V'din), founded circa 1990, though one might be forgiven for thinking that to be a somewhat self-centered view.

So I'm stumped.

Tuesday, February 13, 2018

Conference report: CARB's 50th Anniversary

UC Davis recently hosted a conference marking the 50th anniversary of the California Air Resources Board. Richard Frank reports at Legal Planet:

CARB convened for the first time in January 1968, following enabling legislation prompted by the chronic, crippling smog that enveloped Southern California, its residents and economy in the 1950’s and `60’s.  The Board quickly became a national and international leader in air pollution regulatory strategy and pollution control technologies for stationary and vehicular sources alike.  That leadership was reflected in the 1970 Clean Air Act, when Congress granted California–alone among the states–the authority to adopt vehicle emission standards more stringent than those promulgated by the federal government.  (Attendees were reminded at the “CARB at 50” conference that this longstanding federal deference to California auto emission standards is due in large part to strong and successful lobbying by then-California Republican Governor Ronald Reagan.) 
*****
The California Air Resources Board has achieved a truly remarkable record of success over the past half century.  California’s air quality today is roughly 95% better than it was when the Board first convened in 1968.  Air pollution control technologies pioneered by CARB in California have been replicated nationally and internationally.  In 2004, CARB enacted the world’s first GHG emission reduction standards for motor vehicles, which was only the start of a multitude of innovative and successful Board regulatory strategies to address the overarching environmental challenge of our time–climate change.  And, last but not least, CARB demonstrated that it is a regulator with considerable bite when the occasion requires it–as the Board amply demonstrated in responding to Volkswagen’s fraudulent “gaming” of emissions control systems in the diesel vehicles VW marketed in California and worldwide.
For more on Reagan the environmentalist see here.

The full conference proceedings are here.

Sunday, February 11, 2018

Digital library II: A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses (1877)

Following up last week's post on Michael Lobban's piece on the British Rivers Pollution Prevention Act, 1876, the second work to be added to our digital library of historical environmental law is Clement Higgins's A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses, published in London by Stevens and Haynes in 1877 (a year after enactment of the water pollution legislation).

Just as the treatise on game law covered here last week emphasized the inherent conflict of interest between different social groups and the distributive effects of the law, Higgins writes in the Preface:
It is to the interest of the public, and to the majority of riparian proprietors, to protect the purity of our rivers, whereas it is generally to the convenience of sanitary authorities and of manufacturers to pollute them.
An attempt is made in this book to place before the protectors of our rivers the nature of their rights and how they may best be protected, and before the polluters of our rivers the extent of their liabilities and how they may best be met.
The author was apparently not only a barrister but also a scientist, "formerly Demonstrator of Chemistry at King's College, London".

The treatise is divided into two parts: Part I covers the 1876 statute, organized around different types of pollution: solid matter, sewage, manufacturing effluents, and so on. Part II, entitled "Riparian Rights and Their Protection", covers the common law of water rights with an emphasis on issues of pollution.

A long appendix reproduces statutory provisions on the subject, a useful resources for any historian wanting to understand the environmental regulation of the time, anchored in laws that we might not recognize as "environmental" today, such as the Metropolis Management Act, 1855.

Friday, February 9, 2018

Irrigation rights in medieval Islam

Barada River in Damascus
Yehoshua Frenkel, a professor at University of Haifa and member of our local environmental history forum, recently pointed me to a 2011 chapter by Boaz Shoshan on water law, "Mini-Dramas by the Water: On Irrigation Rights and Disputes in Fifteenth-Century Damsacus". The abstract:
Apart from discussions of matters of irrigation in legal works, medieval sources provide us with little information on the human dynamics and social interaction that are an integral part of irrigation systems. Some cases involving water were straightforward, whereas others were not. A laconic statement about a settlement (ṣulḥ) that was reached in Muḥarram 886/March 1481, in the presence of the viceroy of Damascus and the chief qāḍīs, between one Kamāl al-Dīn and Shihāb al-Dīn al-Muḥawjib concerning water that was coercively (zulman) diverted from the al-Manshīya river canal, provides us with only a faint echo about such conflict. Fortunately, on other occasions of water disputes Ibn Tawq paints a more detailed picture that allows some idea about their nature. This chapter discusses such disputes.
Shoshan is mostly interested in the social dynamics of the water disputes, but he also notes this information about the law "in the books":
That codifying regulations of water supply was a desideratum in the medieval Islamic world may be concluded from the Persian Kitāb-i Qāni ("The book of Qānāt"), written possibly in the eleventh century A.D., which purpose was to protect owners of subterranean aqueducts, that is, sub-surface canals that were engineered to collect ground water and direct it through a gently sloping underground conduit to surface canals.

Tuesday, February 6, 2018

Tort law, regulation and river pollution

One of the prices those of us who publish chapters in edited collections pay is that our writing often does not get the exposure it would were it published in a journal. So I'd like to bring special notice to a piece by Michael Lobban, "Tort Law, Regulation and River Pollution: The Rivers Pollution Prevention Act and its Implementation, 1876-1951", published in Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change, edited by TT Arvind and Jenny Steele (Hart, 2013). From the introduction:
By 1850, the massive urbanisation and industrialisation which Britain experienced over the previous century had generated unprecedented problems of pol­lution. The mid-century laissez-faire state, with its small central government and fragmented local regulatory bodies, was largely unprepared for these problems, and environmental pro­tection was left in the hands of private litigants - usually wealthy landowners - invoking the common law. However, reform at both local and central level led to new regulatory systems being put in place from the 1870s, which promised to play a larger role in reducing pollution. The Rivers Pollution Prevention Act 1876... was part of this reform. It was a pioneer­ing piece of legislation, the first general statute to deal with river pollution. Yet it has often been seen as a weak measure, which did little to improve river quality. Indeed, some historians have taken the view that it was drafted in such a way as to allow public authorities to hinder the more effective remedies against polluters which were available at common law.
How effective the common law could be in controlling pollution has long been debated among historians. According to JF Brenner, common law judges had no interest in using the law of nuisance to restrict industry, but rather sought to remould it - and emasculate it - to permit industry to develop. Brenner's view has been challenged by John McLaren. In his view, judges were far more divided on issues of policy than Brenner acknowledges. The predominant approach was one which recognised that the common law protected the right to clean water, but which also applied injunctions flexibly, given the practical difficulties of dealing with urban pollution. McLaren acknowledges the relative rarity of common law actions, but he attributes this to social and cultural factors, as well as the technical and financial difficulties faced by those who went to court, rather than to any doctrinal impedi­ments imposed by the judiciary. McLaren's own view that the common law was not par­ticularly effective has in turn been challenged by Ben Pontin, who argues that injunctions obtained by private law litigants could play a crucial role in forcing recalcitrant local authorities to spend money to improve sewage facilities. Leslie Rosenthal also argues that the common law could produce efficient outcomes, by inducing parties to enter into post­litigation negotiations.

Sunday, February 4, 2018

Digital library I: A New Treatise on the Laws for Preservation of the Game (1766)

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on A New Treatise on the Laws for Preservation of the Game, first published in 1764; the second edition, available online, was printed in London in 1766 by His Majesty's Law Printers.

The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham, a prolific author of law books in eighteenth century Britain.

The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation (Oklahoma!, anyone?): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So the author must have been something of a "sporting gentleman" (as he puts it on in the "Advertisement") himself, not simply a disinterested scholar.

Thursday, February 1, 2018

New resource: Digital library of historic environmental law

In order to add some variety to the Environmental, Law, and History blog, as well as to create something I hope will be of lasting value to those interested in the field, I've decided to begin a series of posts on old books on environmental law, and then collate links to the works in an online "digital library". By "environmental law" I mean anything substantially focused on the interaction of law and what we think of today as environmental issues (including "natural resources"), and by  "old" I mean written no later than 1970.

My preference will be for works in the public domain and easily accessible on line, though I'll also link to editions available only in for-pay databases when appropriate. (I also admit to a preference for the odd, the funny, and the bizarre, though these are admittedly subjective criteria and I do not intend to limit myself to them.)

I hope to be able to do this on a weekly basis, so please look for the posts on Sundays, and please email me (dschorr [at] tau.ac.il, or using the form on the right side of this page) with suggestions for books to cover or offers to contribute your own post on a book you've come across.

The first installment should be on its way this weekend, the whole lot will be collated here.

Tuesday, January 30, 2018

LBJ's environmental legislation

A recent issue of Federal History has an article by Nancy Germano, "Negotiating for the Environment: LBJ's Contributions to the Environmental Movement". From the article:
Environmental historian Martin V. Melosi refers to the Johnson administration as "a transitional force in the evolution from old-style conservation to modern environmentalism." This article presents evidence in support of Melosi's statement by showing that the Johnson presidency, typically associated with civil rights, the War on Poverty, and the Vietnam conflict, also created an environmental legacy. In addition to a record number of federal laws directed at protection of natural resources, Johnson's rhetoric and actions set the stage for American environmentalism. He, along with Lady Bird Johnson, initiated new conversations and approaches for natural resource protection and shaped environmental advocacy for the nation. In the process, Johnson generated an enduring conviction that environmentalism and individualism-the individual's claimed freedoms and property rights-could thrive hand-in-hand.
This article explores two legislative campaigns during the Johnson administration-urban beautification and protection of wild and scenic rivers-that exemplified the president's stance on natural resource conservation. These campaigns demonstrated the priorities of environmental "restoration," cleanup, and stewardship later adopted by the environmental movement. By generating public participation in environmental programs and fiercely negotiating the possible outcomes, Johnson's approach and recommended strategies prefigured the work of environmental activists.
Germano notes:
In addition to those discussed in this article, laws relating to the environment signed by Johnson include the Clean Air Act (PL 88-206), Pesticide Control Act (PL 88-305), Wilderness Act (PL 88-577), Land and Water Conservation Fund Act (PL 88-578), Fire Island National Seashore (PL 88-587), Canyonlands National Park Act (PL 88-590), Water Resources Planning Act (PL 89-80), Water Quality Act (PL 89-234), Solid Waste Disposal Act (PL 89-272), Water Pollution Control Act (PL 89-753), Guadalupe Mountains National Park Act (PL 89-667), Endangered Species Act (PL 89-669), Indiana Dunes National Lakeshore Act (PL 89-761), San Gabriel Wilderness Act (PL 90-318), and Great Swamp Wilderness Area Act (PL 90-532).