Negotiating the maritime commons

Another chapter from the previously-noted book, Greening Europe, is "Negotiating the Maritime Commons: Protecting the Baltic Sea in a European Context", by Simo Laakkonen and Tuomas Räsänen. The abstract:

The environmental history of the seas and oceans has generally remained a relatively unexplored theme. This chapter addresses the environmental history of the Baltic Sea, which is a European sea par excellence and the only sea that is entirely located within the continent. We will examine the links between wider historical currents in Europe and the marine environmental history of the Baltic Sea by focusing on three environmental regimes from the end of the nineteenth century until the 1990s. The first environmental regime was developed on an urban level and prevailed from the late nineteenth century until the Second World War. The second environmental regime was developed from the 1960s until the 1970sonaninternational level in the Baltic Sea region. The third environmental regime, spanning the 1980s and 1990s, consisted of developing wider European cooperation. These three different environmental regimes continue to cooperate in the region even today.

How control of nature shaped the international order

Posted recently to International Law Reporter, a nomination by Gail Lythgoe for the most interesting, important, or influential article or book published in 2022:

Joanne Yao, The Ideal River: How Control of Nature Shaped the International Order (Manchester Univ. Press 2022)

This book explores the geographical imaginaries of three rivers (the Rhine, Danube, and Congo) and how these very imaginaries shaped the constitutions, structure, and life of three early international organizations. It is a marvellous tale of how (and why) experts sought to tame nature and also says much about law’s relationship to the physical geography. I always really recommend and admire it because of how well written and engaging it is.

From the publisher's website:

The ideal river examines nineteenth-century efforts to establish international commissions on three transboundary rivers - the Rhine, the Danube, and the Congo. It charts how the Enlightenment ambition to tame the natural world, and human nature itself, became an international standard for rational and civilized authority and informed our geographical imagination of the international. This relationship of domination over nature shaped three core International Relations concepts central to the emergence of early international order: the territorial sovereign state; imperial hierarchies; and international organizations. The book contributes to environmental politics and international relations by highlighting how the relationship between society and nature is not a peripheral concern, but one at the heart of international politics. 

Acid rain and Nordic-Russian cooperation

The recently published book, Greening Europe: Environmental Protection in the Long Twentieth Century – A Handbook, edited by Anna-Katharina Wöbse and Patrick Kupper (De Gruyter Oldenbourg, 2021), has a number of law-related chapters. One is Arne Kaijser's "Combatting 'Acid Rain': Protecting the Common European Sky",  which has an observation on Soviet-Scandinavian relations that takes on additional interest given the news of the day regarding Sweden, Finland, and NATO. The abstract:

In the late 1960s, Scandinavian scientists asserted that the long-range air pollution was causing serious acidification and that emissions all over Europe would have to be diminished. The prevailing view at the time was that air pollution was a local phenomenon best handled by building high smoke-stacks, and the major polluting countries were opposed to spending money on protecting areas far away in other countries. This chapter analyses how the discovery of “acid rain” triggered the first international research projects to confirm long-range air pollution and how, in a second phase, international negotiations involving scientists, policymakers, and diplomats resulted in the Convention on Long-Range Transboundary Air Pollution in 1979. Later on, special protocols were adopted, and the signing nations promised to decrease their emissions in accordance with specific goals. Cold War politics played an interesting role in the negotiations and led to an unexpected alliance between Nordic countries and the Soviet Union.

Effects of acid rain, woods, Jizera Mountains, Czech Republic

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period

As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:

I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.

In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.

Farber's 1981 casebook

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981:

Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then.

Even though the statutes are the same, there have been a massive number of new regulations and court decisions. In 1981, we were able to cover both the Clean Air Act and the Clean Water Act in just over a hundred pages of fairly large print. In the latest edition with Ann Carlson, covering those statutes takes 170 pages in much smaller print. (The next edition will add one more co-author, William Boyd.) In 1980, we could excerpt just about every Supreme Court environmental case, but now there are too many. And of course, there’s CERCLA now. Despite dropping an important topic (public lands) and having smaller print, the latest edition is over 200 pages longer.

I was also interested to see that the 1981 edition had a chapter on federalism, including restrictions on state environmental regulation. We also included some material on the ability of cities to pursue environmental regulations under state law. Both have remained hot topics and the subject of frequent litigation today.

The 1981 edition was ahead of its time in one way: there was a separate chapter on energy and the environment. The amount of pride that I can take in that is dimmed, however, by the fact that we dropped that chapter very soon thereafter and redistributed the contents to other chapters. People had lost interest in energy issues at that point. 

Cronon and commodification

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential Nature's Metropolis (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts:

[Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries.

This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica. The most important distinction, perhaps, was between the human and the nonhuman: proletarianization is, after all, a human process.

Commodification, on the other hand, tends to overwhelm distinctions, starting with the human-nonhuman: while only humans can be proletarianized, everything can be “priced”—placed in a relationship with other things that can be expressed in terms of a number. Even more, while the process of proletarianization seems never to engulf the whole of a person (see my argument in this post), commodification assimilates both individual humans and their internal qualities to a system of commensurable valuations: your cheerfulness as well as your blood pressure, your knowledge of Latin as well as your attention can all be denominated in dollars, no different from a television or a ticket to a concert.

In this way, the story of commodification flattens distinctions between humans and the (rest of the) natural world, demolishing proletarianization’s marked anthropocentrism. Putting a price on human lives or health or knowledge or creativity and putting a price on a chair or a car is one single continuous process; as much as labor could be abstracted as just one more input or one more production cost, the story of making humans into proletarians was always distinct from—if parallel to—the story of extracting value from the natural world.

There are various ways to account for this shift in historical narration away from proletarianization’s anthropocentrism. Certainly, the influence of environmentalism has something to do with it. While very much leftist critique descending from Marx is (still) only fitfully cognizant of ecological critiques of capitalism, some of the ontological premises of an ecological worldview have seeped into culture so generally that an older stark separation of the human and the nonhuman is no longer tenable.

Another possible explanation comes from the small explosion since the 1990s of works in the subfield of what Lorraine Daston has dubbed “historical epistemology,” which as Sklansky defines it is the study of “the invention of new kinds of fact such as employment figures and credit ratings along with the modern metrics and matrices that produced them” (Sklansky, “Elusive Sovereign,” 242). Offspring of the history of science, studies in this vein emphasize the ways that quantification and abstraction have profoundly reshaped the image of “the human,” creating what Dan Bouk has called the “statistical individual.” Incarnated in numbers, this creature can float freely as part of a universe of endlessly adaptable equations: where the human worker needs to occupy a certain place in the production process, the statistical individual can be plugged in far more flexibly at many points in a firm’s calculations and predictions.

*****

The other week on Twitter, Eli Cook pointed out one possible source of inspiration for a generation of historians, one reason why folks who entered graduate school from at least the mid-90s through the present might have had commodities on their minds. That source is a single chapter in a single monograph: the grain chapter of William Cronon’s Nature’s Metropolis (1991), Chapter 3. 

Historical analysis in environmental law

I'm pleased to announce that The Oxford Handbook of Legal History, edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here. The book is available both in print and online. I'd be happy for any comments on my paper!

Free the beach

The Boston Review recently published Andrew Kahrl's "Free the Beach", an essay adapted from his Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism:

For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois, which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity.

Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at high tide, others at low tide, still others at the vegetation line—and devised different definitions of what constituted legitimate use of the public’s shore. Some states conceived of the public’s right to the shore in broad terms. Other states hewed closely to the public trust doctrine’s original intent. Massachusetts and Maine, for instance, held that the public’s right to the foreshore applied only to fishing and navigation; that private ownership extended down to the low-water line; and that the recreational use of private property was tantamount to an unconstitutional taking of private property. Connecticut drew the line between public and private property at the mean high-water mark, and its courts recognized swimming and recreation as legitimate uses of public trust lands.

While Connecticut’s supreme court upheld the public status of the foreshore, the actions of shoreline developers, backed by the state legislature, made it increasingly difficult for members of the public to enjoy their beach access rights. Beginning in the 1880s, wealthy families began building summer cottages along remote sections of shore in the state’s eastern half. In 1885 the state legislature granted a charter to a group of families who owned cottages in Old Saybrook. The charter gave the Fenwick Association the power to levy its own taxes and enact zoning restrictions. During the late nineteenth and early twentieth centuries, other small groups of families successfully petitioned the state legislature for charters to form what came to be known as private beach associations. Many of these early beach associations formed as an expeditious way of meeting the basic needs of summer homeowners in remote, undeveloped areas lacking in basic infrastructure and services. 

The Powell memo

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website:

Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise.

It's a pretty amazing document. Here's an excerpt:

As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lobbyist" for the business point of view before Congressional Committees. The same situation obtains in the legislative halls of most states and major cities. One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the "forgotten man".

Current examples of the impotency of business, and of the near contempt with which businessmen's views are held, are the stampedes by politicians to support almost any legislation related to "consumerism" or to the "environment".

For more on the memo, see here.

Goodbye Abbey, hello intersectional environmentalism

Sarah Krakoff recently posted a critical take on Edward Abbey on Environmental Law Prof Blog. Some highlights:

Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort, we need his irascible, cranky, and irrepressible voice today more than ever.  

But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienating version of what it means to be “truly wild,” or “truly radical,” or “truly environmentalist.” The problem with re-lionizing Abbey in 2018 is not just that he was sexist, racist, and xenophobic. But also that those views were sewn into his brand of so-called radicalism. They constituted the lenses through which he saw the landscape he aimed to protect.

What Abbey saw were beautiful empty places where white men (quite specifically) could be free and wild. Their version of wilderness preservation, even supplemented by the occasional nod to the evils of growth-dependent and extraction-based economies, was oblivious to the structures that enabled their seemingly unmediated encounters with the desert. Those structures included brutal and unscrupulous campaigns to dispossess Native people of most of southeast Utah. They included the failure of post-Civil War efforts to democratize homesteading by including eligible African Americans eager to flee the South. And they included, time and again, the cultural acceptability of exploiting women, both by treating them as fungible sex toys and by relying on them to mind the homestead and raise the young’uns. Abbey’s version of radical environmentalism assumes away all of the inequalities baked into his ability to be a free man in canyon country. Abbey also managed to alienate lots of white men while he was at it. He scorned ordinary work as part of his critique of corporate and industrial interests and romanticized manual labor even while he railed against ranchers and farmers in his midst.

The source of disenfranchisement for rural Americans

Slate's Issac Chotiner recently interviewed Eliza Griswold on her new book, Amity and Prosperity: One Family and the Fracturing of America (Macmillan, 2018). In the interview (and presumably the book) Griswold displays a strong historical sensibility about the legal-environmental roots of some of America's (and hence the world's) current predicament. An excerpt:

Isaac Chotiner: What is it that is “fracturing” America?

Eliza Griswold: These days we are hearing so much about this rural/urban divide. What does that really mean? What is the source of disenfranchisement for rural Americans? Much of it stems from natural resources. Rural Americans have paid for the energy appetites of urban Americans for more than a century.

I think a lot people in urban America would hear that and say, “Well, the people who are voting for candidates who are less interested in environmental protections are coming from rural America, and the people who are voting the opposite way are coming from urban America.” What do you say to that?

The urban American understanding of how regulation plays out on the ground in rural America is woefully inadequate. First of all, we don’t understand how for more than a century in many places in Appalachia, rural Americans have had their land ruined, as well as their health and their communities, in a search for the natural resources that feed urban Americans.

On top of that, if you talk to farmers, if you talk to Appalachian farmers … First of all, none of them simply farm, they have two jobs. Often that second job has to do with resources. They are either coal miners or former steelworkers. But how regulation plays out in their life on a daily basis has to do with farming, and farm regulation has driven many small farms out of business.

So, there’s this huge double standard where, if you talk to a pork farmer in Amity, he’s going to tell you that he has to pay $100 every time the vet comes out to take his shots. And that he has to fence his stream and the cows can’t go into the water. And he can’t drive his tractor across the stream either. Yet for more than a century, extractive industry has been able to come in and do whatever it wants to do. Until finally, here’s oil and gas, here are frackers who are actually paying money for mineral leases. Who are urban Americans to come in and wag a finger and say, “You don’t have the right to make any money off your land.” They don’t even understand how regulation practically works on the ground.

Digital Library VII: 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...

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 a cholera skeptic:

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:

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? 

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):

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). (An 1882 advertisement for the work is here.)

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.

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.

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.

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.