Paper short abstract:

This paper focuses on colonial legal impositions over marine environments, exploring how centralised marine governance frameworks emerged within colonial contexts and considering the continuing influence of this history within contemporary fisheries governance.

Paper long abstract:

European colonisation played a fundamental role in marine dispossession and the entrenchment of unequal and state-dominated marine governance regimes across diverse bodies of water. The imposition of discriminatory legal frameworks was fundamental to this process. Yet, law was not only a tool of European domination but also a resource to contest colonial impositions and advance local interests. Legal struggles on the ground shaped access to and authority over coasts, waters, and marine resources, which then produced disparate challenges, restrictions, and transformations of maritime activities and governance within and outside of colonial structures.

Drawing from the histories of fisheries governance in coastal Ghana and Lake Malawi in the late nineteenth and twentieth centuries, this paper focuses on the legal contests that emerged during British colonial rule surrounding access to fisheries and the rights to regulate fishing activities. These contests played out in colonial courts and prompted colonial regulatory interventions, which worked—on the books at least—to construct colonial governments as the principal custodian over marine resources and the ultimate arbiter in fisheries disputes. This provided the foundations for centralised marine governance, but such governance remained only one of a range of factors that influenced the commercial and technological decisions of resource users.

Drawing from the legal and environmental histories of Ghana and Lake Malawi, this paper will examine how colonial legal impositions within marine spaces formed just one part of a plurality and patchwork of fisheries regulatory regimes, which continues to influence fisheries governance throughout the globe to this day.

Paper short abstract:

This paper investigates the environmental legislation and legal dispute of smoke pollution during the industrialisation process of the nineteenth-century Southern Low Countries (Belgium) – a time when the law was faced with the acute problem of how to balance industrial and environmental interests.

Paper long abstract:

Coal-fired industrialisation in the nineteenth century confronted governments with a major legal problem: how should the law balance the economic benefit of industrial development with the protection of environment and health from the nuisance caused by severe smoke pollution? Historians usually take that it was not until the end of the nineteenth century, when the theory of miasma was discarded and the modern notion of pollution ‘invented’, before the abatement of smoke pollution was to become legally enshrined. Was smoke pollution not regulated or contested, then, at all during the early stages of industrialisation? Did it not run counter to the old common law of nuisance that protected one’s private property from any kind of actionable annoyance to which many nineteenth-century, liberal-oriented governments still held on so dearly? Not only was nuisance considered to be a matter of public attention, private actors could also take issues of smoke pollution to court themselves. In this paper I wish to study the legal regulation and dispute of smoke pollution in the ‘second industrial nation of the world’ during the nineteenth century. To what extent had nineteenth-century citizens a right to clean air and how was it used? It will be argued that there was not simply a ‘great silence’ on the issue of smoke pollution before the end of the nineteenth century, but that a process of silencing of the voices calling for clean air was taking place under a new regulatory framework that increasingly protected the interests of the industry.

Paper short abstract:

This Article examines the social, political, and legislative history of the United States Oil Pollution Act of 1924. The nation's first federal antipollution law is undeservedly obscure and is reassessed through new archival research and historical perspectives.

Paper long abstract:

This Article examines the social, political, and legislative history of the United States Oil Pollution Act of 1924. A century after its enactment, the nation’s first federal antipollution law remains undeservedly obscure. At the height of the conservative Lochner era, during the conservative Coolidge Administration, with conservative majorities in both houses of Congress, and in the face of opposition from the oil and marine shipping industries, the United States Congress enacted a national law prohibiting oil pollution. How did this happen? Who was involved? And what can be learned about today’s conservative legal and political environment?

This work is part of a larger project to synthesize histories of political conservatism and national environmental legislation in the U.S. prior to the 1970s. The author's prior work has traced this development back to through the postwar years. This work extends the inquiry further, examining U.S. federal antipollution legislation within the context of the social and political environment of the post-progressive 1920s, with attention to the role of private associations and business interests in promoting the legislation, and of technological feasibility in ultimately securing passage while also limiting the law's scope.

There has not been a major study of this law since the 1980s, providing an excellent opportunity to integrate new historical perspectives - including environmental history and the recognition of political conservatism as an important historical force - as well as newly available archival records.

I would be happy to participate either in a roundtable or as a solo presentation.

Paper short abstract:

Beginning with the Town Planning Act 1909, this paper charts the legal evolution of Town Planning in the early 20th Century, demonstrating how this legislation integrated urban and rural environmental concerns into one system of administrative land management: the Town and Country Planning system.

Paper long abstract:

When we think of environmental land management in England and Wales it is easy to point to the heroes; the National Park and Access to the Countryside Act 1949 (NPACA), the Wildlife and Countryside Act 1981, and the Environment Acts to name but a few. Yet hero stories do not always give the most honest reflection of reality. As Ursula Le Guin suggested in her ‘carrier bag theory of fiction’ we need to dethrone such heroes to see the truer (legal) story which lies beneath. Using this methodology, this paper explores the origins of Town and Country Planning legislation at the beginning of the 20th Century, demonstrating how this legislation integrated urban and rural environmental concerns into the growing system of administrative land management which became the Town and Country Planning system.

Beginning with the first Town Planning Act in 1909, this paper charts the legal evolution of Town Planning legislation, leading to the first of these hero Acts: The NPACA 1949. In doing so, the paper denotes the integration of urban environmental concerns and a growing consciousness about countryside spaces with pressing social issues, including housing and health. In doing so, these early town planning acts embed ideas of environmental protection into the psyche of town planning and local government administration. The history of Planning Law is often overlooked, yet, as this paper demonstrates is crucial to understanding modern environmental protection laws.

This is part of a broader doctoral project exploring the legal history of national parks.

Paper short abstract:

For decades, untreated industrial wastewater, including chemicals, flowed into the sea, with the belief that the ocean's vastness would neutralize any harm. This paper chronicles the lengthy process leading up to the moment when policymakers recognized the imperative need to protect the environment

Paper long abstract:

In the late 1930s, spurred by Germany's pioneering chemical industry, knowledge of new synthetic pesticides began to emerge and quickly spread to chemical sectors worldwide. The allure of these novel chemical super-agents rapidly gained momentum. Yet, despite the promises and accolades, the inherent drawbacks of these innovations went largely unnoticed.

To keep up with this rapid industrial progress, Danish legislation underwent some changes in 1954, introducing stricter regulations for the domestic market and allocating resources for evaluation by the Toxicological Board. As new chemicals continued to be developed at an accelerating rate, the lot increased year after year, nine times from 1956 to 1983.

Awareness among environmental protection researchers regarding the dangers of these chemicals emerged belatedly. Rachel Carson's seminal 1962 book, "Silent Spring," served as a wake-up call. However, it wasn't until the 1970s that legislation was sufficiently prepared to address the environmental hazards introduced three decades earlier. Only in the 1980s was an efficient administrative apparatus established to mitigate the most severe environmental risks.

This presentation sheds light on the persistent challenge of a continuously innovative chemical industry, contrasted against a regulatory framework that operated at a slower pace and bureaucratic obstacles within the state apparatus. The analysis underscores the interplay between the international pesticide market, scientific discourse on associated risks, the interests of the agricultural sector, public administration, and political deliberations.

Paper short abstract:

This paper explores jurists’ earliest efforts (at Paris, in 1892-93) to adapt international law to the novel kinds of disputes that the depletion of certain species and the specter of anthropogenic species extinction engendered in an age of rapid industrialization and inter-imperial competition.

Paper long abstract:

In the winter of 1893, as rival empires accelerated their fossil-fueled scramble to expropriate as much of the as-yet-uncolonized world as possible, seven leading British, U.S., and European jurists convened in an elegant court room in Paris. Their charge: to adjudicate a highly anticipated international arbitration between Britain and the U.S. over jurisdiction, the law of the sea, and culpability for the near-collapse of a commercially valuable species—the Northern fur seal. Counsel presented wide-ranging arguments concerning the territorial and jurisdictional status of the Bering Sea; the legality of the U.S. Revenue Marine’s seizure of multiple Canadian, U.S., and Indigenous sealing schooners on the high seas; and the U.S. claim of property in the seal herds, which bred on the U.S.-held Pribilof Islands/Tanax Amix.

The U.S. lost the arbitration on all points (which may explain why U.S. historians have largely ignored it). Yet U.S. jurists, while advancing obviously self-interested arguments, also drew on a variety of premodern legal sources to break interesting juridical ground, including arguing that the U.S. had a right to own, protect, and “care” for the Pribilof’s fur seal herds, “in trust for mankind,” wherever they might migrate. Drawing on scientific research, jurists recast the relationship between the so-called “laws of nature” and natural law, ventured theories of culpability for anthropogenic extinction, and critiqued the limits of a jurisprudence (international law) that imposed static, national/imperial borders on a natural world in motion. This paper focuses on Justice Harlan’s long—and long-forgotten—dissenting opinion.

Paper short abstract:

This paper presents preliminary findings from a largescale history of Australian environmental lawyers across five decades. It explains the central design principles of this life writing project, a prosopography, conducted across three years and concentrating on over 40 lawyer subjects.

Paper long abstract:

Lawyers are crucial facilitators and legitimators of social causes, who have shaped Australian law and politics. Yet they continue to be conceptualised by social scientists, historians and even some legal academics, in ways that suggest that their importance to the nation is either marginal or purely instrumental. The activities of environmental lawyers provide rich material for challenging these dominant portrayals.

In the last 50 years environmental lawyers publicly critiqued the economic policies of successive state and federal administrations and corporations and translated these criticisms into legal forms. They urged courts to shed narrow legalistic tendencies, embrace dynamic reasoning and recognise new interests across diverse fields of established law. They created environmental law courses in law schools across the country, with the first initiatives emerging in the late 1970s within Australia’s most radical law school: Macquarie. They founded their own associations and public interest law firms with the mandate of creating novel legal strategies to protect a non-human actor previously lacking legal rights — the environment. Their successors became stewards of these new organisations and were also appointed judges in planning and environment courts and tribunals, handing down rulings which recognised environmental interests to be equal, and even superior, to economic and other social concerns, including employment opportunities and native title interests in land. Drawing on this rich body of data, this paper outlines the central theories and preliminary findings of a study of three generations of environmental lawyers, critically examining their contributions to governance and social causes.

Paper short abstract:

This panel contribution underlines the need to integrate different disciplinary approaches and methodologies - between law, legal history, environmental history (and studies), social and political history, and illustrates this drawing on the history of European Union environmental law.

Paper long abstract:

This panel contribution draws on my research on the history of the emergence of the environmental law of the European Union. In this context, I constantly encounter, how processes primarily of law making (and to some extent also of legal interpretation) are driven by not only, and perhaps not primarily, by legal logics. In fact, (national and European) political and administrative logics and economic concerns are of the greatest importance, and legal aspects often appear as just arguments in the larger political game. Moreover, environmental law-making does not necessary focus primarily on what is what is most urgent or necessary “to save the earth” or clean up the environment. Which problems of the environment become the object of attention, whether and to what extent they become subject to “legal solutions” is strongly contingent on those various other logics and concerns – that involve power, too. Importantly, how different aspects of the environment are perceived and which "solutions" are suggested, is defined by and negotiated among different experts – scientists, but also economists and lawyers, drawing on preexisting legal prescriptions, definitions and precedents. Thus, methodologically speaking, to disentangle the different processes at play in the making and development of European environmental law – changing and integrating disciplinary perspectives and insights is indispensable.

Paper short abstract:

I will share some thoughts on why I think the history of environmental law has been largely neglected, and then try to demonstrate why developing the historiography of environmental law is important today, given the environmental and democratic crises we face.

Paper long abstract:

As part of our double panel on environmental, history, and law, I will share some thoughts on why the history of environmental law has been largely neglected (especially by legal historians; environmental historians seem to take the subject a little more seriously). After examining six explanations, some partly overlapping and some admittedly speculative, I will try to demonstrate why developing the historiography of environmental law is important today, given not only the environmental crisis we face but also the crisis of democracy that threatens environmental law itself.