Sunday, December 29, 2013

American Indians and the American environmental movement

Paul C. Rosier's "'Modern America Desperately Needs to Listen': The Emerging Indian in an Age of Environmental Crisis" appears in the December issue of the Journal of American History. The article
examines American Indians’ perspectives on the “environmental crisis” that shook American society in the 1960s and 1970s. Indian activists, politicians, and intellectuals promoted ecological issues tied to political and legal questions of sovereignty commonly associated with Indians’ “red power” movement, while collaborating with non-Indians on environmental problems to find political support and common ground. His essay addresses the neglect of American Indians in coverage of the 1960s and modern environmental activism and underscores the relationship between political sovereignty and environment, the interplay of symbolic space and real place, and the roots and range of the environmental justice movement. He also offers an example of how Indians’ ideas and actions can be integrated into the broader narratives of modern American history.
There is a prominent legal dimension to the story, as Indians made legal claims based, among other things, on land ownership and treaty rights. Rosier describes an early example:
EPA, Closed Area of Quinault Tribal Beach (1972)

Friday, December 27, 2013

19th-century controversies over groundwater

The new issue of History Today has an article by Raymond Smith, "Fractious Waters", on historical precedents of current controversies over "fracking". Smith writes:
Pump and ventilation shaft in operation,
Kilsby railway tunnel, Northamptonshire, 1837
(History Today)
Although springs have been used from pre-human times and wells since pre-history, the intense exploitation of water supplies is less than two centuries old. Part of the impetus for using groundwater was the sheer quantity of water that had to be disposed of from some railway cuttings and tunnels, which helps to explain the interest of the engineer Robert Stephenson, who commented in 1840 on the ‘enormous reservoir which nature has supplied us with in the Chalk’. Not surprisingly the chalk aquifers around London were a focus for the early discussion. London was the hub for the new railways and had a growing demand for water due to  its rapidly swelling population and the demands of sanitation.
The advocates of the use of groundwater emphasised unlimited opportunity. The initial attempts to exploit it were often founded on unthinking enthusiasm and many early schemes were abandoned. By the 1870s, however, scientific understanding and the use of technology was sufficiently advanced to establish a groundwater industry.

Thursday, December 26, 2013

Scholarship trends in international environmental law

Over at Legal Planet Dan Farber asks, "What do the numbers show about the trajectory of scholarship in international environmental law?":
It can be difficult to identify patterns  in legal scholarship.  One way of doing that is to check on the frequency of key words, using Westlaw or Lexis-Nexis to track the numbers.  There are some interesting patterns in scholarship on international environmental law:
  1. The field came into its own in the decade from 1987 and 1997.  Indeed, the phrase “international environmental law” was barely used at the beginning of that decade but commonplace by the end.
  2. Key ideas from international environmental law such as sustainable development and the precautionary principle have found footholds in U.S. scholarship.  Attention to these concepts grew continuously from 1987 to 2007 but may have stabilized since then.
  3. There has been steadily growing attention over the past 15 years to international agreements dealing with climate change and oceans.
His blog has the numbers.

Monday, December 23, 2013

Environmental law and the collapse of New Deal constitutionalism

Arthur McEvoy's recent article, "Environmental law and the Collapse of New Deal Constitutionalism", he writes, is a prĂ©cis for a book in progress about the history of late twentieth-century U.S. environmental law, a book to which I am very much looking forward. (His The Fisherman's Problem (Cambridge UP, 1986) is a key work of environmental-legal history.) The article, he writes:
argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New Deal regime as a whole, as it reached the peak of its vigor in the early 1970s and decayed gradually but steadily thereafter.

Saturday, December 21, 2013

100th anniversary of the Raker Act

Over at Legal Planet, Richard Frank writes:
December 19th marks a sad event in American environmental history.  It was 100 years ago today that President Woodrow Wilson signed the Raker Act, authorizing the City of San Francisco to build a dam that would flood the Hetch Hetchy Valley in Yosemite National Park in order to deliver water supplies to San Francisco.
Albert Bierstadt, Hetch Hetchy Canyon (1875)
Contemporary accounts–including those of John Muir–attest to the stunning beauty of the Hetch Hetchy Valley. (Muir wrote: “Hetch Hetchy Valley is a grand landscape garden, one of Nature’s rarest and most precious mountain temples.”)  In its natural state, Hetch Hetchy was considered an ecological twin of the world-renown Yosemite Valley that lies, relatively undisturbed, a few miles to the south.
San Francisco’s construction of the O’Shaughnessy Dam on the Tuolumne River flooded the Hetch Hetchy Valley under 300 feet of water, turning it into a municipal reservoir. Public access to this portion of Yosemite National Park has been limited for decades and, compared to its natural state, there’s not a lot see or enjoy there in any event.  John Muir considered the destruction of the Hetch Hetchy Valley to be his biggest political failure, and a national tragedy. 
Frank goes on to discuss current debates about whether the dam should be dismantled and Hetch Hetchy restored.

Friday, December 20, 2013

Four decades of US environmental law

Two articles by Denis Binder reflect on environmental law in the US since around 1970. "Perspectives on 40 Years of Environmental Law" examines some of the causes of the outburst of legal activity in the field after 1970, as well as several key judicial doctrines, legal theories, and more. "Looking Back to the Future: The Curmudgeon's Guide to the Future of Environmental Law" is a wide-ranging survey of environmental lawmaking by American legislatures and courts, from the beginning of European settlement in North America. It covers many legal developments not typically mentioned in historical surveys of environmental law, such as the Submerged Lands Act of 1953 and the Swamp Land Acts of the mid-19th century.
from Arkansas Commissioner of State Lands site

Sunday, December 15, 2013

North and South and "sustainable development"

Over at "The View from the South", Charles McKelvey recently posted on the history of the idea of sustainable development. An excerpt:
Vinales Valley, Cuba
(Eco Cuba Network)
The evolution from development to sustainable development was tied to what Pearce and Warford (1993) [World Without End: Economics, Environment, and Sustainable Development, OUP] have called the second environmental revolution.  The first environmental revolution of the 1960s had seen economic growth and environmental protection as irreconcilable opposites, always in conflict.  But the second revolution of the 1980s did not question the need for growth.  Rather, it sought to define how to grow, or how to develop in a form that is sustainable.
The Cuban scholar and environmental specialist Ramon Pichs (2006) [“Medio Ambiente y Desarrollo, 1964-2004” in Libre Comercio y subdesarrollo, La Habana: Editorial de Ciencias Sociales.] maintains that the turn to sustainable development occurred as a result of the participation of organizations and movements of the Third World in the global process of reflection on environmental issues.  From the point of view of the Third World, the ecological revolution of the 1960s, with its call for conservation and for constraints on economic growth, made sense in the context of the developed societies, characterized by over-production and irrational patterns of consumption.  But limiting growth was not a reasonable approach for the underdeveloped societies, which did not have productive patterns that could provide even basic human needs, as a consequence of the neocolonial situation.  However, the Third World discerned from the outset the importance of the ecological revolution as it developed from the 1960s through the 1980s, given its consciousness of the contaminating effects of the prevailing patterns of production and of the global scope of environmental problems.  Thus, Third World participation in the discussion led to a reformulation of the issue, and sustainable development emerged as a new consensual understanding. 

Thursday, December 12, 2013

Urban origins of "regulatory takings"

Michael Allan Wolf has posted "The Brooding Omnipresence of Regulatory Takings: Urban Origins and Effects". From the article's introduction (with notes omitted):
Collapsing Scranton coal mines were
at issue in the seminal case of
Pennsylvania Coal Co. v. Mahon (1922)
The concept of a regulatory taking, or technically “inverse condemnation,” made its first appearance on page ten of the very first issue of the Fordham Urban Law Journal in 1972, when New York Attorney General Louis J. Lefkowitz made the following observation in his lead article: “The courts have reduced the scope of [the usque ad coelum] doctrine, allowing an owner aggrieved by noise from overflights to recover damages for what is termed an inverse condemnation, while holding that the doctrine does not justify the granting of an injunction against overflights.” That first article—Jamaica Bay: An Urban Marshland in Transition—is an early example of what we now call “urban environmental law,” in which the author discussed public trust, wetlands protection, NEPA, public nuisance, and noise, air, and water pollution.

Tuesday, December 10, 2013

What makes for a successful environmental campaign?

Over at Legal Planet Jonathan Zasloff asks, "Why Did the Mono Lake Campaign Succeed?":
Environmentalists celebrate the campaign to save Mono Lake as one the iconic triumphs in US environmental history.  As well they should.  But why did it succeed?  It’s a critical question not just for environmentalists, but for any scholar or member of social movements.
After positing his own hypothesis--the identity of the adversary (in the Mono Lake case, the LA Department of Water and Power), and discussing the explanation given by Marshall Ganz for the success of Cesar Chavez's United Farm Workers' movement, Zasloff asks readers:
Which failed environmental movements, particularly of the 70′s and early 80′s, might form a useful comparison case for Mono Lake?  The time period is crucial, in my view: this was a good time for environmental politics, especially in California, so to make the comparison fair, one has to get the time right.  Moreover, it should relatively discrete: you can’t make good comparisons between Mono Lake, and, say, “water quality” or “oceans.”  it would be best to find another campaign to save, well, a like, but that’s hard: maybe a relatively discrete species.
So what about it?  What’s a good comparison?  And what can we say about why it failed?

Sunday, December 8, 2013

50th anniversary of the US Wilderness Act

The website of the 50th Anniversary National Wilderness Planning Team (Wilderness50) is dedicated to celebrating the 50th anniversary of the 1964 Wilderness Act:
In 2014, our nation will celebrate "50 Years of Wilderness" and this website has been created to document this historical commemoration honoring America's "True American Legacy of Wilderness." A national team, called Wilderness50, has been created to plan educational events, projects, programs, and products to raise awareness of wilderness during the 50th anniversary year. This website provides a map and listing of all local, regional, and national 50th anniversary events that are occurring nation-wide, including the National Wilderness Conference. It also provides access to resources for individuals or community groups interested in hosting a 50th anniversary event. 
The deadline for proposals for the conference, to be held in Albuquerque October 15-19, 2014, is January 10, 2014. Scholarships are available.

Contributions are also being solicited for contributions to a Smithsonian Museum of Natural History exhibit entitled, "Wilderness Forever: 50 Years of Protecting America's Wild Places", set to open next September.

Thursday, December 5, 2013

The Environmental Moment

Environmental History has a review by Gary Kroll of The Environmental Moment, 1968–1972, a collection of primary-source documents edited by David Stradling (U Washington Press, 2012). The book contains a number of classic legal sources, including the National Environmental Policy Act and Justice Douglas's iconic dissent in Sierra Club v. Morton ("Mineral King"), in which he argued for granting standing to inanimate natural objects, as well as "voices—Reagan, Joseph Ling, and John Maddox—of those who opposed or criticized the costs of new forms of regulation."

Kroll writes:
The central purpose of this collection is to capture that heady period of protest and response between 1968 and 1972, but Stradling sends out tendrils both fore and aft and all the while directs us to interpretive themes that have emerged from the social turn in environmental historiography.
He sums up:
By and large, Stradling has given me something that is hard to resist.

Sunday, December 1, 2013

More on "The Mortal Sea"

A while back we re-posted George Conk's review of W. Jeffrey Bolster's award-winning The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). Now Environmental History has a review of the book by Michael J. Chiarappa. From the review:
Desiring “to write the ocean into history,” Bolster connects the fate of the northwest Atlantic's ecosystem to critical European antecedents that have not been fully examined in a transatlantic context. Given the depletion that had occurred in their home waters, sixteenth- and seventeenth-century Europeans gradually brought the northwest Atlantic's abundance—indeed, a stark contrast to the Old World's crippled marine ecosystem—into their commercial orbit. As permanent settlement ensued along the New England coastline, fishing effort began restructuring the sea's biomass by targeting species that were within ready reach—anadromous fish, sea mammals, and waterfowl, as well as nearby stocks of cod and mackerel. Sublime abundance, accompanied by a providential mindset, fueled these early use patterns. But Bolster challenges us not to be overly seduced by this narrative, and instead, to consider the rumblings of a nascent precautionary approach among New Englanders who still had Old World depletion fresh in their minds.
The paradox of precautionary sentiment, of wanting to fish but also wanting to preserve fish, runs throughout The Mortal Sea. In the nineteenth century, more efficient harvesting technology sharpened these debates in both tone and substance as signature sea fishes such as cod and mackerel showed stress, along with their forage base, menhaden. In a political and cultural climate that was hardly inclined to deny fishing rights, competing claims and perspectives devolved along various lines, but one loomed large: whose experience, be it small-scale fishermen, scientists, politicians, or capital-intensive fishing firms, would exert authority and be credibly accounted for in reckoning the increasingly complicated environmental politics of the northwest Atlantic?