Environment, Law, and History

During these days of executive/legislative tension in the US, the Journal of Policy History recently published John Hart's "The National Environmental Policy Act and the Battle for Control of Environmental Policy". The abstract:

In 1969, a public debate between President Nixon and Congress took place during the legislative passage of the National Environmental Policy Act and centered on two very different and competing conceptions of how presidential advice should be organized in the Executive Office of the President. It focused on the proposed establishment of the Council on Environmental Quality. The outcome of the ensuing battle represented a complete victory for congressional interests against the expressed wishes of the president. The nature of the debate has been overlooked in the literature on the presidency, but it highlights fundamental issues about agency design and presidential control of the institutional presidency. It also highlights broader concerns about the degree of congressional involvement in shaping the Executive Office of the President.

"New council on environment," Michigan Daily, January 30, 1970

Bears Ears National Monument designated by President Obama

Following up Sunday's post on the Antiquities Act, I'd like to note an interesting post on the topic by Nick Bryner at Legal Planet. There's a lot of straght legal analysis, but a large dose of legal history as well. Bryner takes on an AEI "white paper" written by John Yoo and Todd Gaziano:

First, Yoo and Gaziano seek to re-frame the history and past judicial decisions on the Antiquities Act in order to make an argument about the purpose of the Act. The authors raise the argument that the Act has been “abused” for the purpose of effectively creating new, large national parks, and that the large size of some monuments designated throughout the Act’s history runs counter to the statute. Their claim purports to be rooted in textual analysis of the Act, but relies on an assumption due to the context of “earlier and contemporaneous bills” that would have “limited monument designation to 320 or 640 acres (page 3). The Act instead provides that monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Yoo and Gaziano posit that the lack of a size limit “provide[s] flexibility for special situations and not to allow a million-acre designation” (page 3). Contemporaneous history, however, also points to officials in the Interior Department who favored broad empowerment of the President to set aside public lands, and suggests that these officials had a hand in adding the Act’s more expansive language of “other objects of historic or scientific interest” to meet this goal. No court has ever invalidated a presidential designation of a national monument — from the Grand Canyon under Teddy Roosevelt (its status as a national monument, prior to conversion to a national park, was upheld by the Supreme Court against mining claims in Cameron v. United States), to the Giant Sequoia NM under Clinton (upheld by the DC Circuit in Tulare County v. Bush).

*****

The purpose and context of the Antiquities Act, including congressional action and inaction over the past century, suggest that a one-way ratchet — presidential designation, with significant reduction or revocation only by Congress — is exactly what was intended. Congress was concerned that historical, archaeological, and natural or scenic resources could be damaged or lost, and devised a delegation to the President to act quickly when needed to preserve those resources, leaving Congress the opportunity to deliberate on a longer-term solution for the area in question, if it so decided. On 10 occasions, Congress has reversed those presidential decisions; far more often, it has concurred or built upon the President’s actions by expanding monuments or re-defining them as national parks. This is how the process is supposed to work. Antiquities Act designations do not, as critics say, cut off debate or circumvent the democratic process. They simply alter the status quo in favor of conservation — a precautionary approach. If Congress studies the matter and decides to change or abolish the monument to allow for different uses of the land, it has the power to do so through the usual legislative process; until that action is taken, objects of historic or scientific interest are protected.

Dave Owen recently posted the following at Environmental Law Prof Blog:

(from NMFS)

In environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990. In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law. Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

While reading up on statute consolidation and revision in 19th-century Britain, I came across (thanks to Desmond H. Brown, "Abortive Attempts to Codify English Criminal Law") an 1826 speech on the topic by the great reforming Conservative politician, Robert Peel, then Home Secretary. Here's what Peel had to say about criminal offenses regarding trees (a topic written about so elegantly by EP Thompson):

There are not less than twenty statutes relating to the preservation of trees from theft or wilful injury, some properly confined to trees alone, others relating to matters so utterly unconnected with the protection of timber, or with the crime of theft, that I shall be almost suspected of fabricating the title of a bill for the purpose of my argument. It seems to have been discovered about fifty or sixty years since that the various laws which had previously passed with respect to timber, did not afford sufficient protection to hollies, thorns, and quicksets, and to save the trouble of amending the former laws—these neglected shrubs were provided for in an act, which, in taking charge of them, took charge also of the other matters referred to in the following title.

George Patten, Sir Robert Peel, 2nd Bt

"An Act for the better securing the duties of customs upon certain goods removed from the outports and other places to London; for regulating the fees of his majesty's customs in the province of Senegambia in Africa; for allowing to the receivers general of the duties on offices and employments in Scotland a proper compensation; for the better preservation of hollies, thorns, and quicksets in forests, chases, and private grounds, and of trees and underwoods in forests and chases; and for authorizing the exportation of a limited quantity of an inferior sort of barley called bigg from the port of Kirkwall in the island of Orkney."

Now, Sir, what I propose is, not to lessen the security which the law gives to the owner of madder roots, not to throw open the holly or thorn to wanton depredation, but merely to transplant them to a more congenial soil than the province of Senegambia.

Jeff Thaler recently posted "At the Birth of the Clean Water and Clean Air Acts" at Environmental Law Prof Blog. From the post:

2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,”  grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted.  Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.”  For that reason, he deliberately included the open-ended phrase “selected air pollution agents.” And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

That's the title of a piece by Nathaniel Rich in the New York Times Magazine. Rich writes:

As the Mississippi shifted its course over the millenniums, spraying like a loose garden hose, it deposited sand and silt in a wide arc. This sediment first settled into marsh and later thickened into solid land. But what took 7,000 years to create has been nearly destroyed in the last 85. Dams built on the tributaries of the Mississippi, as far north as Montana, have reduced the sediment load by half. Levees penned the river in place, preventing the floods that are necessary to disperse sediment across the delta. The dredging of two major shipping routes, the Mississippi River Gulf Outlet and the Gulf Intracoastal Waterway, invited saltwater into the wetlands’ atrophied heart.

Beneath the surface, the oil and gas industry has carved more than 50,000 wells since the 1920s, creating pockets of air in the marsh that accelerate the land’s subsidence. The industry has also incised 10,000 linear miles of pipelines, which connect the wells to processing facilities; and canals, which allow ships to enter the marsh from the sea. Over time, as seawater eats away at the roots of the adjacent marsh, the canals expand. By its own estimate, the oil and gas industry concedes that it has caused 36 percent of all wetlands loss in southeastern Louisiana. (The Interior Department has placed the industry’s liability as low as 15 percent and as high as 59 percent....)

The oil and gas industry has extracted about $470 billion in natural resources from the state in the last two decades, with the tacit blessing of the federal and state governments and without significant opposition from environmental groups. Oil and gas is, after all, Louisiana’s leading industry, responsible for around a billion dollars in annual tax revenue. Last year, industry executives had reason to be surprised, then, when they were asked to pay damages. The request came in the form of the most ambitious, wide-ranging environmental lawsuit in the history of the United States. And it was served by the most unlikely of antagonists, a former college-football coach, competitive weight lifter and author of dense, intellectually robust 500-page books of American history: John M. Barry.

The article goes on to detail the dramatic background to the lawsuit, constitutionally questionable political efforts to kill it in the Louisiana legislature, and Barry's place in all this. Worth a read.

I recently gave a paper on environmental law in art, on which I plan to post soon (see here). In the meantime, today's post by Dan Ernst at Legal History Blog, the final one in his series on his new book, provoked further thoughts on the subject. Ernst mentions two murals by Elihu Vedder in the Library of Congress, part of a five-mural set on "Government" executed in 1895-6. In "Good Administration" we see order and justice against a background of waves of grain.

Elihu Vedder, "Good Administration" (Library of Congress)

Elihu Vedder, "Corrupt Legislation" (Library of Congress)

I find this intriguing. In Vedder's view, was the pollution of the late-nineteenth-century industrial revolution the result of corrupt legislation? Were the harmful effects of corruption best seen in the permissive environmental regulation of the period? What can we learn from this mural about contemporary attitudes toward pollution and the law that did or didn't control it?

Please let me know your thoughts!

Susan Olzak, Sarah Soule, Marion Coddou, and John Munoz recently posted "Friends or Foes? The Impact of Political Allies and Social Movement Activity on Environmental Legislation in Congress". The abstract:

This paper challenges implications from leading social movement theories of policy change by presenting results that cast doubt on the benefits of having elite allies. Using event history techniques, we show that bill sponsors identified as strong allies of the environmental movement have a significantly lower chance of enacting pro-environmental legislation. Instead, successful legislators had environmental voting records closer to the median voter in Congress, are members of the dominant political party, and hold positions as chairs of environmental committees. While environmental lobbyist groups positively influence the passage of legislation, contrary to conventional wisdom, peaceful protest has no significant effect on legislative outcomes.