Peck on Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia @wuvlaw @WVlawreview

Alison Peck, West Virginia University of College of Law, is publishing Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia in the West Virginia Law Review. Here is the abstract.

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state.

Download the article from SSRN at the link.

Tomasovic on Soundscape History and Environmental Law in the Supreme Court

Brian Tomasovic is publishing Soundscape History and Environmental Law in the Supreme Court at 45 Environmental Law 895 (2015).. Here is the abstract.

Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.

The full text is not available for download from SSRN. Here's a draft.

Who Ya Gonna Call?

What is the rebooted Ghostbusters about? In a review for The Scholarly Kitchen, Joseph Esposito views it as actually about academic peer review, the Kristen Wiig character's attempt at rehabilitating her scientific reputation, and digs at academic publishing. Unusual fare for Hollywood, but intriguing. Color me interested. But then, I'm the one who interpreted the original version as a metaphor for environmental regulation.

Via @lisambayer, @mobabb3700

Alexander on the Historical Origins of the Scottish Right to Roam and Democratic Culture

Gregory S. Alexander, Cornell Law School, has published The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam as Cornell Legal Studies Research Paper No. 16-16. Here is the abstract.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This Article is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life. One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. This Article argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Download the article from SSRN at the link.

Now available from the Ohio State University Press: The Politics of Ecology: Land, Life, and Law in Medieval Britain

Now available: The Politics of Ecology: Land, Life, and Law in Medieval Britain (Randy P. Schiff and Joseph Taylor, eds.; Ohio State University Press, 2016) (Interventions: New Studies in Medieval Culture). From the publisher's description of the contents:

If medieval literary studies is, like so many fields, currently conditioned by an ecological turn that dislodges the human from its central place in materialist analysis, then why now focus on the law? Is not the law the most human, if not indeed the human, institution? In proposing that all life in medieval Britain, whether animal or vegetable, was subject to the same legal machine that enabled claims on land, are we not ignoring the ecocritical demand that we counteract human exceptionalism and reframe the past with inhuman eyes? This volume, edited by Randy P. Schiff and Joseph Taylor, responds to these questions by infusing biopolitical material and theory into ecocentric studies of medieval life. The Politics of Ecology: Land, Life, and Law in Medieval Britain pursues the political power of sovereign law as it disciplines and manages various forms of natural life, and discloses the literary biopolitics played out in texts that work out the fraught interactions of life and law, in all its forms. Contributors to this volume explore such issues as legal networks and death, Arthurian bare life, Chaucerian medical biopolitics, the biopolitics of fur, ecologies of sainthood, arboreal political theology, conservation and political ecology, and geographical melancholy. Bringing together both established and rising critical voices, The Politics of Ecology creates a place for cutting-edge medievalist ecocriticism focused on the intersections of land, life, and law in medieval English, French, and Latin literature. Randy P. Schiff is Associate Professor of English at SUNY Buffalo. Joseph Taylor is Assistant Professor of English at the University of Alabama in Huntsville.

Unclean: How Environmental Language and Racist Language Are Linked

Carl Zimring, Associate Professor, the Pratt Institute, is publishing Clean and White: A History of Environmental Racism in the United States (New York University Press, 2016). Here is a description of the book's contents from the publisher's website.

When Joe Biden attempted to compliment Barack Obama by calling him “clean and articulate,” he unwittingly tapped into one of the most destructive racial stereotypes in American history. This book tells the history of the corrosive idea that whites are clean and those who are not white are dirty. From the age of Thomas Jefferson to the Memphis Public Workers strike of 1968 through the present day, ideas about race and waste have shaped where people have lived, where people have worked, and how American society’s wastes have been managed. Clean and White offers a history of environmental racism in the United States focusing on constructions of race and hygiene. In the wake of the civil war, as the nation encountered emancipation, mass immigration, and the growth of an urbanized society, Americans began to conflate the ideas of race and waste. Certain immigrant groups took on waste management labor, such as Jews and scrap metal recycling, fostering connections between the socially marginalized and refuse. Ethnic “purity” was tied to pure cleanliness, and hygiene became a central aspect of white identity. Carl A. Zimring here draws on historical evidence from statesmen, scholars, sanitarians, novelists, activists, advertisements, and the United States Census of Population to reveal changing constructions of environmental racism. The material consequences of these attitudes endured and expanded through the twentieth century, shaping waste management systems and environmental inequalities that endure into the twenty-first century. Today, the bigoted idea that non-whites are “dirty” remains deeply ingrained in the national psyche, continuing to shape social and environmental inequalities in the age of Obama.

 More here from Pacific Standard.

Ecological Justice, Fear, and Art

Afshin Akhtar-Khavari, Griffith University Law School, has published Fear and Ecological (In)Justice in Edvard Munch's the Scream of Nature at 2 NAVEIÑ REET: Nordic Journal of Law and Social Research 130 (2015)(Special Issue on Law and Art).

We are accustomed to thinking about fear simply in terms of immediate or significant sensorial experiences – like coming face to face with a snake – but this has simply dulled our capacity to appreciate nuanced cognitive and temporal dimensions of emotional experiences of fear. In the Anthropocene epoch, the collective impact of our experiences and their impact on the ecology of planet Earth are important. However, instead of addressing the emotional reactions to being materially embedded, we often separate ourselves from this situation – both cognitively and emotionally. This article argues that our capacity to appreciate the kind of ecological justice that is needed in the Anthropocene epoch requires us to pay closer attention to our emotional experiences – particularly fear. In this context, Munch’s painting provides intrinsic symbolic support for and expression of the potential of fear to expose the reality of the impact of ecological injustice on human beings. 

Download the article from SSRN at the link.

Pope Francis and the Natural Environment

John Copeland Nagle, Notre Dame Law School, is publishing Pope Francis, Environmental Anthropologist, in volume 28 of the Regent University Law Review (2016). Here is the abstract.

In June 2015, after much anticipation and a few leaks, Pope Francis released his encyclical entitled “Laudato Si’: On Care for Our Common Home. “Laudato si’” means “praise be to you,” a phrase that appears repeatedly in Saint Francis’ Canticle of the Sun poem. The encyclical itself has been widely praised and widely reported, far more than one would expect from an explicitly religious document. The encyclical is breathtakingly ambitious. Much of it is addressed to “every person living on this planet,” while specific parts speak to Catholics and others to religious believers generally. It surveys a sweeping range of environmental and social problems. Along the way, it relies on anthropology, theology, science, economic, politics, law, and numerous other disciplines. Especially anthropology. The popular response often described Laudato Si’ as a “climate change” encyclical. It’s not: only five of the 180 pages specifically address climate change, about the same as the discussion of the noise and ugliness, crime, housing, and transportation that affect the “ecology of daily life.” It is not really even an environmental encyclical, for the natural environment does not play the starring role. Rather, it is an encyclical about us. Francis contends that the natural environment suffers because we misunderstand humanity. This Article examines the encyclical from the perspective of Christian environmental thought more generally. It begins by outlining the development of such thought, and then it turns to the contributions of the encyclical with respect to environmental anthropology, environmental connectedness, environmental morality, and environmental governance. As the article explains, Pope Francis is a powerful advocate for a Christian environmental morality but a less convincing advocate for specific regulatory reforms. His greatest contribution is to encourage more people, religious believers and non-believers alike, to engage in a respectful dialogue about how we can better fulfill our responsibilities to each other and the natural world that we share.

Download the article from SSRN at the link.

Rhetoric and Rupture: The Language and Legislation of Fracking

Ole W. Pedersen, Newcastle University Law School, has published The Rhetoric of Environmental Reasoning and Responses as Applied to Fracking at 27 Journal of Environmental Law 325 (2014). Here is the abstract.

This essay examines in detail the rhetorical means most commonly used in debates on environmental regulation. The article argues that debates on whether and how to regulate in the context of the environment often take the form of a predictable toing and froing between participants in such debates. The primary reason for this is found in the all too common reliance of participants on ready-to-hand arguments. These include: the pertinent point in time argument; the unripe point in time claim; the singular point of response argument; the sufficiency of existing structures claim; the presence of a particular risk argument; the one final measure argument; and the been here done that claim. By way of illustration, the article makes use of debates surrounding hydraulic fracturing in the UK in the form of the recently enacted Infrastructure Act 2015. The article concludes that the reliance on predictable means of rhetorical moves runs the risk of taking place at the expense of attempts to find a constructive middle-ground.

Download the essay from SSRN at the link.

Evaluating the Lougheed Era In Alberta, 1973-1993

Ted Morton, University of Calgary School of Public Policy, and Meredith McDonald have published The Siren Song of Economic Diversification: Alberta’s Legacy of Loss as SPP Research Paper No. 8-13. Here is the abstract.

Former Alberta premier Peter Lougheed is celebrated for his defence of the province and Western Canada during the energy wars of the 1970s, and deservedly so. Prime Minister Pierre Trudeau was a formidable opponent. He was able and willing to use the full arsenal of federal powers to redirect soaring western energy revenues away from Alberta to Ottawa. For those of us in Western Canada, it is unpleasant to imagine what the outcome of this struggle would have been if a lesser man than Peter Lougheed had been at Alberta’s helm. But there is another aspect of the Lougheed legacy that is less remembered because it is less celebrated — also deservedly so. These were Lougheed’s ambitious economic diversification projects. Between 1973 and 1993 (when Ralph Klein became premier), the Lougheed-Getty “forced-growth” economic diversification projects are conservatively estimated to have cost Albertans $2.2 billion. While former premier Don Getty got most the blame for these losses (as many occurred during his watch), most of these programs began earlier. Lougheed’s push for government-led diversification of the Alberta economy was a policy hallmark of his 1971 electoral breakthrough, and marked a sharp break from three decades of Social Credit laissez-faire policies.

The Lougheed-Getty diversification fiascos are of more than just historical interest. While the subsequent Progressive Conservative (PC) regime of Premier Ralph Klein (1993-2006) followed an explicit philosophy of “government is not in the business of business,” the more recent Stelmach (2006-11) and Redford (2011-14) governments have not.

Both have embraced government-sponsored “value-added” and diversification initiatives, including the North West Redwater Partnership upgrader and two new endowments to provide “funding for social and cultural innovation, and agricultural innovation.”

As Alberta’s fifth premier in the past nine years, Jim Prentice, takes the helm and tries to restore some stability to Alberta’s public finances, it merits revisiting the Lougheed-Getty experience for lessons learned. Our read of their record cautions against going down the same road again. While we identify several successes (e.g., Syncrude, Alberta Energy Company, and the ethane-based petrochemical industry), these were mostly in the hydrocarbon energy sector, and so contributed little to diversifying Alberta’s economy. Our analysis identifies the largest dollar losses (the “Dirty Dozen”), several of which suggest that failure to control costs is endemic to government-led projects. Last but not least, the sheer number and diversity of government-funded projects reflects an unhealthy culture of corporate cronyism. With billions of dollars sitting in the newly created Alberta Heritage Savings Trust Fund earmarked for “diversification” and “capital projects,” the temptation to spend became irresistible. The Heritage Fund, rather than serving its original purpose of a long-term “rainy-day account,” became a giant slush fund for ministers’ pet projects. The result is that, in real dollars, the Heritage Savings Trust Fund has a lower net worth in 2015 than it did in 1987.

By the time Klein won the leadership of the PCs in 1993, his predecessors had racked up over $23 billion in net debt. Klein is widely celebrated by some (and criticized by others) for the harsh budget cuts he made to eliminate the structural deficit he inherited. Less well known is that the Klein team also terminated almost all the Lougheed-Getty diversification and stimulus programs. In their stead, the Klein governments — under the leadership of treasurers Jim Dinning and Stockwell Day — pursued a diversification policy based on macroeconomics: making Alberta the most tax- competitive jurisdiction in Canada. This “build-it-and-they-will-come” approach was intended to attract both financial and human capital. This approach has enjoyed modest success thus far, as witnessed in the growth of the financial services sector and the relocation of many corporate head offices to Calgary. It is clearly a lower-risk path to sustained prosperity than the ill-fated, government-led “forced-growth” initiatives of the Lougheed-Getty era.

Download the paper from SSRN at the link.

Singing Out For Freedom

Anthony Victor Alfieri, University of Miami School of Law, is publishing Resistance Songs: Mobilizing the Law and Politics of Community in volume 93 of the Texas Law Review. Here is the abstract.

In 1925, the City of Miami built a trash incinerator in the de jure segregated Afro-Caribbean-American community of Coconut Grove Village West (“the West Grove”) amid rows of shotgun style houses and Jim Crow schools. Commonly known as Old Smokey, the incinerator discharged airborne carcinogenic chemicals (e.g., arsenic, benzo(a)pyrene, cadmium, and lead) and produced residual toxic waste (e.g., ash, liquefied plastic, and melted glass) for 45 years until Florida courts finally ordered it closed in 1970. In 1978, notwithstanding community opposition, the City of Miami converted the 4.5 acre Old Smokey site and incinerator building into its Fire-Rescue Training Center which continues to operate today. In 2013 and 2014, West Grove residents working in collaboration with faculty and students from the University of Miami School of Law learned from a whistleblower-leaked municipal environmental report that long-term exposure to Old Smokey’s airborne carcinogens and toxic waste dump sites had caused extensive soil and possibly groundwater contamination of homeowner properties and public parks in Coconut Grove and across the City of Miami and Miami-Dade County.

This Essay investigates the historical absence of civil rights- and environmental justice-incited legal and political mobilization around Old Smokey in light of Professor Lea VanderVelde’s important new book Redemption Songs: Suing for Freedom before Dred Scott. In Redemption Songs, VanderVelde, a distinguished legal historian, builds on her much praised biography of Mrs. Dred Scott and the contemporary work of historians in the field of slavery to study the nineteenth century practices of antebellum freedom suits in St. Louis, Missouri and in the western territories. VanderVelde carves out several lines of inquiry in Redemption Songs useful for historians of race and advocates for the legal-political rights of impoverished racial communities. Closely interwoven, the inquiries seek to ascertain how enslaved men and women learned that their residence in free territories conferred the legal right to sue for freedom and, further, how they advanced that emancipatory right in the St. Louis courts. More specifically, VanderVelde asks, who actually “instructed” the enslaved? Who, in St. Louis, Missouri, and the western territories, “led the way?” Why did some enslaved parents, children, and families “delay” and “wait” to file suit? What were the end results of the lawsuits and what “factors” influenced their in-court and out-of-court outcomes?

To resolve these questions, VanderVelde parses the extraordinary collection of freedom suit petitions filed by slaves in St. Louis between 1814 and 1860. These freedom suits, according to VanderVelde, tell stories of nineteenth century caste, class, and racial status. Equally important, the freedom suits tell stories of nineteenth century judges, lawyers, and legal rights consciousness in the contexts of racial advocacy and adjudication. In the same way, civil rights and environmental justice suits tell stories of twentieth and twenty-first century caste, class, and racial status, affecting stories of chronic illness and widespread contamination bound up in the work of judges and lawyers, and informed by an expanding legal consciousness of common law, statutory, and constitutional rights to a healthy and safe environment. By discrete historical turns, freedom suits, civil rights suits, and environmental justice suits tell stories of individual, group, and community rights under conditions of cultural, political, and socio-economic subordination. Viewed from the bottom, these same stories of freedom, civil rights, and environmental justice are also about individual and community power expressed through multifaceted forms of legal-political resistance.

The purpose of this Essay is to draw out the lessons of antebellum freedom suits, and, by comparison, modern civil rights and environmental justice suits, to learn how to tell better stories of community power and resistance in Miami and elsewhere. For historians and advocates alike, better stories are not only more accurate descriptively, but also more potent emotionally or expressively and more effective instrumentally or prescriptively. To draw out the historical comparison between freedom and civil rights or environmental justice suits and to hone better legal-political stories of resistance, the Essay revisits the principal set of questions animating VanderVelde’s nineteenth century investigation. However basic these questions may appear at first glance, they warrant continuing reassessment and reconsideration by lay and legal advocates, law school clinical faculty, law students, and university scholars. Consider, for example, the threshold question – how do subordinated communities of color learn of their legal rights? Further, how do they advance their emancipatory, civil or environmental justice rights without equal access to courts or effective representation? Who does and who should “instruct” such communities in their legal rights? Who, in St. Louis, Miami, or other inner-city communities across the nation, “leads the way?” Why do some individuals, families, or groups “delay” and “wait” to file suit? What are the end-results of civil rights and environmental justice lawsuits spearheaded by subordinated groups and communities, and what “factors” influence their in-court and out-of-court outcomes? Although beyond the cabined scope of this Essay, these fundamental questions of civil rights, environmental justice, and poverty law frame its broad contours and invigorate wider research on law and social movements.

The Essay proceeds in three parts. Part I parses VanderVelde’s central notions of subordination, voice, and redemption and illustrates their resonant force in the recently compiled oral histories of Old Smokey survivors. Part II examines VanderVelde’s interpretation of St. Louis freedom suits and the Missouri legal rule of freedom-by-residence. Part III recasts VanderVelde’s interpretive stance on antebellum freedom suits against the backdrop of Old Smokey to consider legal-political rights campaigns and community resistance strategies in the context of civil rights and environmental justice claims.

Download the Article from SSRN at the link.

Assessing Lynn White's Arguments Forty Years On

John Copeland Nagle, Notre Dame Law School, has published What Hath Lynn White Wrought? at 2 Fare Forward 44 (2012). Here is the abstract.

Lynn White’s 1967 article on “The Historical Roots of Our Ecologic Crisis” famously blamed Christianity for modern environmental problems. White’s historical analysis viewed Christianity for cultivating a dismissive view toward nature and for embracing technology in a way that resulted in unchecked pollution and extinctions. Since White wrote his article, Christian scholars have accepted the challenge that White’s diagnosis presented. Other nations, perhaps most notably China, have experienced crippling environmental destruction even in the absence of a legacy of Christian thought. More positively, White’s thesis has encouraged a generation of scholars to explore the positive aspects of Christian thought for environmental policy. 

Download the article from SSRN at the link. 

Critical Autopoiesis: Law and the Environment

Andreas Philippopoulous-Mihalopoulos, University of Westminster, the Westminster International Law and Theory Centre, has published Critical Autopoiesis: The Environment of the Law, in Law's Environment: Critical Legal Perspectives (Bald de Vries and Lyana Francot eds.; The Hague, Eleven International Publishing, 2011). Here is the abstract.
 

Law and Environment enter a connection of disrupted continuum. The recent 'turns' in law towards materiality, spatiality, corporeality, disconnect the usual distance between law and its environment and enhance the visibility of materiality continuum between the two. Law is no longer abstract but spatially emplaced, corporeally felt, materially present. The environment, be it in the form of human/non-human bodies, technology, weather phenomena, and the wider, open ecology of material presence, destabilises the system, rendering it more precarious and more distant from its usual self-description.

Building on Luhmann's theory of autopoiesis, I present my reading of what I call Critical Autopoiesis, namely the autopoietics of materiality, spatiality and corporeality as they emerge from contemporary legal theory. I am employing Deleuze and Guattari in connection to Luhmann in order to multiply and indeed fractally explode the Luhmannian boundaries between law and its environment.

Download the essay from SSRN at the link.

Hegel, Law and the Environment

Pravin Jeyaraj has published Philosophy of Love: Hegel, Christianity and Environmental Law. Here is the abstract.

Much Christian opposition to Hegel's philosophy is based on the perception the dialectic supports cultural relativism and the idea that opposing truths can both be valid. This is a narrow interpretation of the dialectic and knowledge and that, more broadly, it reflects the contradictions and interdependence that exists between individual entities. This paper argues that the contradictory interdependence of Hegel's dialectic has its roots in Christian thought and Hegel's earlier theological writings. The paper then goes to suggest how this Christian Hegel could be helpful in developing a model for environmental law research.

Download the paper from SSRN at the link.




This paper was presented at a Christian Academic Network workshop on "Knowing in God's World" under the title "Reflections on methods of knowing".

Environmental Politics and Indigenous Peoples

Eve Darian-Smith, University of California, Santa Barbara, has published Environmental Law and Native American Law, at 6 Annual Review of Law and Social Science 359 (2010). Here is the abstract.

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of inquiry - environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.

The full text is not available from SSRN.

Coal Mining, Up Close

The Harvard University Press Blog notes that Spike TV premiered a new reality series, Coal, March 30 at 9 p.m. (8 Central time). The first fourteen minutes of the first episode is available for online viewing. It offers a look at the work involved in drilling for and removing the resource from the earth, and the dangers that miners face every day. The miners who appear on Coal apparently do so without pay from the documentarians.

The TNT television series Leverage addressed the dangers of coal mining and problems with regulation in one episode, "The Underground Job," last year (commentary here). Steven Fesenmaier of WV Film lists movies about coal mining and miners here. Some films, like Matewan (1987), have a definite political/legal message.