Environment, Law, and History

Marco Island in 1964 (left) and present day (Michael Coleman)

Slate recently published a piece by Henry Grabar, "The Lessons of Marco Island", on the Florida island that was savaged by Hurricane Irma last week and the legal history that enabled its development while protecting nearby wetlands. Some highlights:

Forty years ago, the consensus of the state and federal governments was that Marco Island should not have been built at all. The community was the setting for one of the biggest development controversies in the United States and nearly ruined one of Florida’s largest and most celebrated developers. In a region with a notorious building addiction, it became the site of the environmental movement’s greatest victory over the Florida growth machine. Ecological foresight halted millions of dollars in real estate development and all but ended an engineering technique that had turned the South Florida coast from swampland to resort.

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When brothers Robert, Elliott, and Frank Mackle discovered Marco in the early 1960s, half of its 10 square miles consisted of mangrove swamps. Home to just a few hundred people and an abandoned clam factory, it was the single largest undeveloped barrier island property in South Florida. 

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The plan called for 35,000 residential units, which would require displacing 18.2 million cubic yards of ground (more than 150,000 dump trucks’ worth), dredging the land into channels, and using the dredge to create development sites in the swamp. This method is common across South Florida; Cape Coral, a little to the north, is a good example. Still, at the time, Marco Island was the largest “finger-fill” waterfront housing project to ever come before the Army Corps of Engineers, Science reported in 1976.

Deltona's "finger-fill" development used dredging to transform swampland into canal-side residential plots (Flip Schulke/US National Archives and Records Administration)

It's 50 years since the Torrey Canyon oil spill off the coast of Cornwall, one of the worst oil spills ever. The disaster led to a series of dramas, not only oil slicks and dead wildlife, but (partly ineffective) bombings of the wreck by the British military, and the following legal drama (as reported by Wikipedia):

Claims were made by the British and French governments against the owners of the vessel and the subsequent settlement was the largest ever in marine history for an oil claim. The British government was able to serve its writ against the owners only by arresting the Torrey Canyon's sister ship, the Lake Palourde, when she put in for provisions at Singapore, four months after the oil spill. A young British lawyer, Anthony O'Connor, from a Singaporean law firm, Drew & Napier, was deputised to arrest the ship on behalf of the British government by attaching a writ to its mast. O'Connor was able to board the ship and serve the writ as the ship's crew thought he was a whisky salesman. The French government, alerted to the Lake Palourde's presence, pursued the ship with motor boats, but crew were unable to board and serve their writ.

More importantly, the disaster led to a series of changes in international law, as told by the International Maritime Organization, including amendment of the International Convention for the Prevention of Pollution of the Sea by Oil and adoption of the International Convention for the Prevention of Pollution from Ships.

The spill also led to early legal scholarship on environmental law, including Albert Utton's 1968 "Protective Measures and the 'Torrey Canyon'" and Colorado water law scholar Ved Nanda's "The Torrey Canyon Disaster: Some Legal Aspects".

(courtesy Old Merthyr Tydfil)

Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:

At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”

Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:

The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying....

Following up on Sunday's post on disasters, here's more on the subject: Franz Mauelshagen recently posted "Natural Disasters and Legal Solutions in the History of State Power". Some excerpts:

Throughout the history of disasters, legal solutions of one sort or another have played a significant role in recovery and prevention, as well as in shaping politics and individual behavior. After the Great Fire of London, following an extreme summer drought in 1666, the city council passed new building laws preventing the use of timber and man-dating stone or brick construction.Wood chimneys were prohibited after fires in Boston in 1631 and in New York in 1648. A list of similar legal changes in response to disasters would be endless. Through building codes,urban fire disasters have left visible traces in cityscapes almost everywhere around the world. In fact, because the new norms impact planning and construction for generations, they continue to leave such traces long after the buildings erected in the wake of the disaster have disappeared. 

Legal solutions operate at the intersection between government and the members of a political community by sanctioning certain types of individual behavior, either through coercion or incentives. In other words, legal solutions aim to achieve a degree of behavioral homogeneity and predictability that legislators consider desirable. The potential of natural hazards and disasters to trigger cultural transformations over the long term ismost obvious in environmentally vulnerable regions, such as dense urban agglomerations, coastal settlements, or agricultural economies in precarious climatic conditions.

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So far, only a few historians have considered natural disasters as an element in the evolution of governance. The evidence that has been brought to light suggests that natural disasters probably deserve a place in the history of state power—along with war and state competition. Political response to the second Bubonic plague pandemic in Europe, beginning with the Black Death in 1348, evolved over several centuries and left permanent traces in legal and political systems. Robert C. Palmer diagnosed that, in medieval England, the Black Death transformed “the nature of English governance” towards centralization, a new under-standing of governmental authority,and an enlargement of the sphere of legal matters. Such feedbacks of legal regulations in the realm of governance also explain how hospitals, originally invented to interrupt the chain of infection by separating the healthy from the sick, went from temporary to permanent institutions. The same holds true for medical councils, whose members initially had been appointed only in times of high emergency. In the eighteenth century, however, they became permanent, which made them precursors of departments of health in modern nation states.

Worms Machzor (1272)

In this time of wandering of nations, apparently partly climate-induced, lawyers are wrestling with the question of the legal status of climate refugees. On the other hand, a traditional view, still held by many, sees a seamless continuity between law and environment.

Over the next couple of days Jews will celebrate Rosh Hashana, the Jewish New Year, also the Jewish Day of Judgment. One of the highlights of the synagogue service for Ashkenazi Jews is the prayer known as Unetaneh Tokef ("Let us relate the power of the day's holiness"), a sort of Jewish Dies Irae, which contains these lines (translation Helen Plotkin):

On Rosh Hashanah it is written, and on Yom Kippur it is sealed.
How many will pass and how many will be created?
Who will live and who will die?
Who in their time, and who not their time?
Who by fire and who by water?
Who by sword and who by beast?
Who by hunger and who by thirst?
Who by earthquake and who by drowning?
Who by strangling and who by stoning?
Who will rest and who will wander?
Who will be safe and who will be torn?
Who will be calm and who will be tormented?
Who will become poor and who will get rich?
Who will be made humble and who will be raised up?

While our modern sensibilities make the causal connection between morality and environmental catastrophe difficult to accept at face value, there is an ethical attraction in the older view's refusal to absolve humans for their responsibility for the suffering caused by "natural" disasters; these become disasters only with the addition of human agency.

As the traditional Jewish New Year's blessing goes, may we all--the wandering and the tempest-tost, as well as those fortunate to have to face only the ethical dilemmas created by the suffering around us--be inscribed and sealed for a good year.

(For more on immorality and environmental catastrophe see here.)

Readers may be interested in the recent call for papers (courtesy of H-Environment) for an international conference on "Disaster, Environment and Property: historical approaches, 19th-20th centuries", to be held at EHESS in Paris 2-3 December, 2015. The call explains:

Property systems are essential operators in the anthropization of environments. The transformations they cause or enable often contribute to increasing societies’ exposure to natural hazards. Conversely, historical research shows that some forms of ownership and inheritance law can help to avoid the occurrence of disastrous events, such as avalanches in mountainous areas. Central and local authorities have also long sought to constrain property rights in order to prevent the occurrence of disasters and alleviate their effects, for example by compulsory purchase or the restriction of individual property rights.

Taking a historic perspective focusing on the 19th and 20th centuries, the conference will explore the interactions between property systems, resources and environments, and the particular class of socio-ecological processes that is disasters. The concept here is understood broadly to include “natural”, “industrial”, “demographic” and “ecological” disasters. Property systems are taken as the whole range (individual property, public ownership,  common property and commons, servitudes, intellectual property) with particular stress on the actual practices (technical, legal, scientific, enforcement, etc.) that underpin their existence and combine to make them operate as historical institutions.

Disasters, in their short- and long-term effects, reshape the operating conditions for private and public actors, enabling them to affect the distribution of property and its workings, i.e. its rules of acquisition and transmission and the rights it entails.

A disaster is an occasion for the transformation of property in ways that may have many purposes and motivations: economic, political, ideological. It is also likely, by design or chance, to produce, at a relatively small scale of space and time, an “emergency situation” for property as ordinary rules are relaxed or relief must be provided. Disasters are also a motive for action, often as part of public policy, affecting property rights in order to prevent a catastrophe in advance, or mitigate or repair its effects afterwards. These three aspects (opportunity, emergency, management) interact and overlap to produce a complex set of processes of historical co-construction of property and disasters that the conference will address.

More details at H-Environment.

Saumya Umashankar has posted "Evolution of Environmental Policy and Law in India". The abstract:

The paper examines the evolution of environmental policy and law in India and the dominant influences that defined the course of policy. It identifies four distinct phases – the colonial and immediate post-colonial phase, the second phase commencing from the UN Conference on Human Environment in 1972, the Bhopal Gas leak disaster marking the milestone for the third phase and judicial activism extending over two decades as the fourth phase. In the initial colonial and post-colonial phase, environment policy was centered around State rights over forests and usage of forest produce. The dominant themes were revenue accretion and usage of forest products to fulfill development needs specifically in the spread of the railways and communication network. The post-colonial phase immediately after Independence in 1947 did not see a significant shift from the colonial period. The UN Conference on Human Environment in 1972 marked a significant milestone that changed the course of environment policy forever. The presence and participation of the Prime Minister of India in the Conference deliberations brought an immediate response in Government’s focus towards conservation actions. The period from 1972 to 1980 saw a large number of legislations being enacted. The Bhopal Gas Leak Disaster was a defining movement in India’s environmental history. The inadequacy of the governance structure in prevention of the disaster, the inability of legal and administrative processes to deliver adequate compensation to the affected people and stirring of public consciousness about the threats posed by environmental negligence came together to reshape environmental policy. A chemical leak incident in the national capital shortly after the Bhopal disaster and the death of a practicing advocate in the incident became the trigger for judicial involvement in environmental matters. The source of policy developments in environment decisively shifted from an elected political executive to an unelected judiciary. International debates on climate change in recent years and commitments to abatement measures appeared only at the fringes of policy discussions. The paper narrates the progression of environment policy and law in India in each of these phases.

Mining in Goa (Sugandh Juneja)

Environmentalists are sometimes accused of wanting to return to the Stone Age. Here's a fascinating, recently posted article--Ryan Soa's "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene"--that argues that the problem with modern American environmental law is precisely that it neglects the coping strategies of hunter-gatherer societies in favor of patterns of behavior adopted in the wake of the neolithic revolution. From the article's conclusion:

Hundreds of thousands of years of hunter-gatherers survived, and in some ways evolved as a result of, extreme droughts, floods, and wildfires. They did so despite extraordinary ecological changes they could not dream of controlling, adapting themselves to the new realities of their environment. Some approaches worked, and inevitably some did not. But a hominid record that stretches millions of years reveals a model for resilience to extreme natural events like droughts, floods, and wildfires. First and foremost, they were mobile. For some hunter-gatherer societies this meant the entire community migrated to a more favorable environment; for others, the relocations were temporary. Whatever the extent, societies that prioritized mobility were successful in removing people and assets from harm’s way. Second, their approaches were diversified. Societies were adept at recognizing and exploiting many potential food sources and ecosystem services. Mobility and diversification, in turn, were made possible by a sophisticated awareness of the surrounding environment. Ecological changes and opportunities were recognized and effectively integrated into community decision-making processes. These characteristics of the Paleolithic hunter-gatherer – mobility, diversification, and awareness – allowed societies to survive for thousands if not millions of years. 

Neolithic tools

The Neolithic Revolution brought a fundamental shift to the human lifestyle. Agricultural systems require settlement and management of a static area. When a drought, flood, or wildfire strikes the region, escape to more favorable conditions is not possible. The vulnerabilities of this approach are exacerbated by reliance on one or a limited number of short-sighted resilience strategies, such as cutting down a forest or building a dam. What mitigation options remain are not capitalized on due to a low level of awareness of the surrounding environment and its feedbacks, or an inability to effectively translate awareness into meaningful policy change. These characteristics of vulnerable civilizations are apparent in the legal frameworks of the United States. The totality of drought, flood, and wildfire laws and policies conform to three basic approaches: 1) controlling nature; 2) spreading risk across society; and 3) providing ex-post disaster relief. The first approach utilizes impressive feats of human engineering and ingenuity, but inadequately considers the consequences of modifying natural systems. Relying on infrastructure is equally problematic because built structures are prone to deteriorate and fail.Spreading risks across society by subsidizing insurance premiums for people and property in high-risk areas is compassionate and may promote other policy interests, but for purposes of building resilience to extreme natural events is not productive, and may in fact be counterproductive. The current trend of distributing generous disaster relief packages to affected communities is similarly compassionate but ineffectual in building resilience. Taken together the paradigm of disaster law in the United States boils down to strategies that control nature or, should that fail, reactively soften the blow.

...It is unlikely that the highly populated agricultural societies of the Anthropocene will return to a nomadic hunting and gathering lifestyle. Nonetheless, millions of years of human evolution and adaptation to droughts, floods, and wildfires tells a success story that has long been overlooked. For the sake of our collective resilience to extreme events, we would be wise to take another look. Despite the contrast in lifestyles, droughts, floods, and wildfires have been a constant feature of humans in their environment. The resilience model of the past provides a paleo perspective on contemporary legal frameworks, and can helpfully inform the future.

Ft. Calhoun Nuclear Reactor , Nebraksa in the midst of flooding Missouri River (Corps of Engineers)

Flooded Greenville, Mississippi, 1927 (MOMA)

Following up on yesterday's post on their Mississippi River Tragedies: A Century of Unnatural Disaster, here's another post from Christine Klein and Sandra Zellmer (re-posted from The Hill):

President Obama recently signed a controversial bill that will directly affect the safety of millions of Americans. The fine print is so complicated, though, that it’s hard to predict exactly how our safety will be affected.

Some say that the Homeowner Flood Insurance Affordability Act of 2014 brings desperately needed relief to property owners who face ruinous increases in their premiums for federal flood insurance. To supporters like Sen. Schumer (D-N.Y.), the law preserves the American dream of homeownership from ill-conceived intervention by “an irrational Washington force.”

Others see the new law as election-year pandering and a cowardly reversal of course. Just two years ago, Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 in direct response to catastrophic damage from Superstorm Sandy. The 2012 law prescribed strong medicine to salvage the solvency of the flood insurance program from a shortfall of some $25 billion caused by insurance payouts after Sandy and Hurricane Katrina. Before its rollback on Friday, the 2012 law would have quickly phased out federal subsidies until owners of flood-prone properties paid the true actuarial costs of their insurance. Some (but not all) properties that had been receiving subsidies saw 25 percent rate hikes.  The 2012 law also required more accurate, up-to-date floodplain maps so that people could easily identify dangerous areas, but the new law relies on obsolete maps to assess premiums on existing homes.

It’s impossible to understand this legislative zigzag without understanding our century-long experiment with federal flood control.

Beginning early in the 20th century, Congress tried to engineer the nation out of danger by spending well over $100 billion (in current dollars) on federal levees and dams. But no structure is foolproof, and all have their limits. As one engineer explained, there are two kinds of levees: “Those that have failed and those that will fail!” Case in point—Katrina, a mere Category 3 hurricane, made short work of the Industrial Canal and the 17th Street Canal levees.

Christine Klein and Sandra Zellmer recently published Mississippi River Tragedies: A Century of Unnatural Disaster (NYU Press 2014). At my request, the authors sent me this description of the book:

The book chronicles the history of the Mississippi River Basin, which drains about 40% of the continental United States. Through a series of historical vignettes, the book uncovers the nation's century-long experiment with federal flood control. With the best of intentions, we transformed natural disasters such as floods and hurricanes into "unnatural" disasters. In the words of one reviewer, the authors "have provided a thoroughly engaging account of the human contributions to so-called 'natural' disasters that reads like a good mystery novel."

As the book reveals, engineers have done astounding things to bend the Mississippi River to their will: transforming over a thousand miles of roiling current into a placid staircase of water; imprisoning the mighty flow behind walls of levees; even forcing one of the tributaries to flow uphill. But despite our best efforts to control the river, so called "natural" disasters continue to strike the Mississippi basin. Raging floodwaters decimate waterfront communities and dislodge everything in their path--homes, trees, livestock, even dozens of caskets at a time. Mississippi River Tragedies reveals that it is seductively deceptive--and dangerously misleading--to call such catastrophes "natural."

The book  highlights the historical development of a trio federal policies designed to protect the nation from floods: federal structures (such as levees and dams), federal disaster relief, and federal flood insurance.  These policies backfired. As an unintended consequence, they lured more people into harm's way by conveying  a false sense that it is safe to settle in dangerous, flood-prone areas. The book concludes with a series of recommendations--including giving rivers room to flood--to avoid yet another century of unnatural disaster.

Tomorrow we'll have a post from the authors on the historical background to the Homeowner Flood Insurance Affordability Act of 2014 (and another post here).

The latest number of Environment and History has an article by Shane Ewen, "Sheffield's Great Flood of 1864: Engineering Failure and the Municipalisation of Water". The abstract:

Recent scholarly research at the intersection of the histories of technology and the built environment has revealed many tensions surrounding the design, building and management of major socio-technologies like urban waterworks. There remains much scope for research into the interdependence of socio-technological systems, engineering knowledge and the political and commercial agendas of municipal governments and private water suppliers respectively. In particular, the short- and long-term impact of reservoir disasters - examined in detail here through the case of Sheffield's 'great flood' of March 1864, in which over 250 people lost their lives - on the ownership and control of urban waterworks reveals many conflicts within the engineering profession, as well as the urban community itself, about the causes and consequences of socio-technological failure in the mid-nineteenth century. Using a rich variety of municipal, legal and commercial archival records, as well as contemporary newspapers, this article examines the competing interests involved in negotiating the long-term municipalisation of water supplies and concludes that greater attention should be paid to the influence of man-made disasters and engineering actors in this political game.