Gerhart & Cheren against the law of capture

Following on our post on Brian Frehner's review of Terence Daintith's Finders Keepers?: How the Law of Capture Shaped the World Oil Industry, Bobby Cheren wrote in about an article he coauthored with Peter Gerhart, "Recognizing the Shared Ownership of Subsurface Resource Pools". Arguing against the view that the American law of property in oil and gas has been dominated by the rule of capture, Gerhart and Cheren write that

the common law embraced the paradigm of shared property in much of its regulation of subsurface resource pools because it essentially treated those resources as owned by tenants in common, as modified by the common law nuisance exception for injuries to subsurface resource pools.

Guenther reviews Bower's "Wet Prairie"

A final post on book reviews from April's Environmental History:

Michael Guenther's review of Shannon Stunden Bower's Wet Prairie: People, Land, and Water in Agricultural Manitoba (UBC, 2011) describes it as a "well-researched book" that reveals "the untold story of how the flow of water in this 'wet prairie' decisively shaped the region's social and political order".

Morag-Levine on the historical roots of the precautionary principle

I had the privilege of commenting earlier this week on a paper by Noga Morag-Levine on the historical roots of the differing approaches taken to the precautionary principle. Focusing on the “permissive” version of the principle, according to which regulators should be allowed to regulate suspected risks even in the absence of proof of harm, she argues that the transatlantic debate of the last few years regarding the propriety (or legality) of the principle has deep roots in debates going back hundreds of years.

Frehner reviews Daintith, "Finders Keepers?"

The latest Environmental History has a review by Brian Frehner of Terence Daintith's Finders Keepers?: How the Law of Capture Shaped the World Oil Industry (RFF/Earthscan, 2010). Frehner writes:

Much has been written about the history of oil and gas law within the United States, but few authors have provided an accessible entreé into the subject. Daintith has undertaken a daunting task by revisiting the subject and attempting to expand on it by approaching the topic in a comparative manner.

Farmer reviews Radkau, "Wood: A History"

Jared Farmer reviews Joachim Radkau's Wood: A History (trans. Patrick Camiller, Polity, 2012) in April's Environmental History, calling the book "masterful scholarship" (I can vouch that the same is true of Radkau's Nature and Power (Cambridge, 2008)). Farmer writes:

Radkau... asserts there never was a true wood shortage in eighteenth-century Europe or nineteenth-century America. “Deforestation phobia” was largely an invention of the state.

RIP Norris Hundley

Over at "Legal Planet" Jonathan Zasloff remembers Norris C. Hundley, Jr. (1935-2013), historian of water law (and other topics) in the American West, and author of over 100 books and essays. His books included The Great Thirst: Californians and Water—A History (1988, rev. ed. California, 2001), which Zasloff calls "a monumental survey of California water history", and Water and the West: The Colorado River Compact and the Politics of Water in the American West (1975, 2nd ed. California, 2009),"the best account of the creation of the Compact, and necessary reading for water policy analysts, lawyers, and really anyone with an interest in the tangled and fraught politics of the Colorado River." Zalsoff's post includes more on Hundley's work and generosity as a scholar.

Swidler reviews "Custom, Improvement, and the Landscape in Early Modern Britain"

The latest issue (April 2013) of Environmental History has a number of book reviews that may be of interest to readers. Eva-Maria Swidler reviews a collection of essays edited by Richard W Hoyle, entitled Custom, Improvement, and the Landscape in Early Modern Britian (Ashgate, 2011).

Dickens, Kafka, and environmental law

Continuing our literary turn, Seth Jaffe's recent "Jarndyce v. Jarndyce Has Nothing On Comer v. Murphy Oil: The Fifth Circuit Court of Appeals Affirms Dismissal", on the "Law and the Environment" blog, discusses the bizarre story--Kafkaesque (more here) as well as Dickensian--of Comer v. Murphy Oil, a suit against greenhouse gas emitters brought by victims of Hurricane Katrina in US federal court.

Burger on Environmental Law/Environmental Literature

The latest issue of Ecology Law Quarterly has an article by Michael Burger on "Environmental Law/Environmental Literature", in which he examines the role of certain environmental narratives in contemporary environmental law. From the abstract:

Competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a kind of expressive, literary event.

PSA: This American Life on Climate Change (Episode: “Hot in My Backyard”)

Tune your audio devices to this week’s This American Life podcast for a pleasurable dip into the maddening debate over climate change.  

Ira thinks he sees a glimmer of progress (ie, rejection of climate change denialism) in the “national conversation” on climate change.

I’m not so sure—overall attitudes toward man-made climate change are more skeptical than they were ten years ago, while scientists agree more than ever. And the evidence provided in the podcast itself suggests that business interests have pushed Republican legislators farther toward denialism than actual Republican voters.

Reg neg, command and control, informational approaches and more

Today was the final day of an impressive conference being hosted at TAU, entitled "New Approaches for a Safer and Healthier Society". While the papers were primarily forward-looking, and focused less on environmental issues than on other public health issues such as smoking, obesity, and patient safety, there was a lot to think about environmentally and historically speaking. I'll focus here on two papers with relevance to the history of environmental regulation.

Peter Schuck presented a paper (coauthored with Steven Kochevar) entitled "Reg Neg Redux: The Career of a Procedural Reform". Reg neg (regulatory negotiation), proposed by Schuck in a 1979 article, is a way for government agencies to make rules relying on communication and negotiation between interested parties rather than on the more formal and adversarial process known as "notice-and-comment rulemaking" required by the US Administrative Procedure Act (APA) of 1946. In addition to sketching history of reg neg since 1979 (its use has apparently been infrequent), the conference paper explored objections that have been raised to the process and explanations for why it has been little used.

Thinking about reg neg and notice-and-comment historically and comparatively though, I wonder which of these methods of rulemaking is really the rule and which the exception: To what extent are American federal rules really formed in the process mandated by APA rather than through informal communications and negotiations carried on before, during, and after the formal notice-and-comment process? When placed in a global, comparative context, might American-style adversarial rulemaking be an exception to the rule? What forms of rulemaking were supposedly extinguished by the APA in 1946, and how might the influences of these traditional methods continue to influence the way secondary legislation is formulated and enacted today? As for so many current environmental law topics, some historical perspective would be useful.

Another paper, offered by Robert Rabin (one of the conference organizers) was "Reducing Tobacco Use: A Reassessment of Strategic Initiatives". Rabin surveyed the various policy tools—taxation, place restrictions, information, and so on—that have been employed over the years to try and limit tobacco use, as well as some of their legal and political limits. He pointed out what a negligible role "command and control" regulation has played in tobacco regulation, and claimed that tort litigation, too, has had little effect on the industry or on tobacco use. His analysis made me wonder how environmental regulation has developed along similar or different lines, and to the extent that it has differed from tobacco control efforts, what explains the divergence.

A comment on Rabin's paper by my teacher Alon Harel, focusing on the distributional effects of informational strategies (a policy tool that has gotten a lot of play in the environmental literature in recent years), supplied a further point of entry for thinking historically about environmental regulation. Harel pointed out that providing information on the harms of smoking seems to have been more successful in lowering smoking rates of the upper classes than of the lower. Might this distributional lens help us make sense of the changing fortunes of "hard" and "soft law" approaches to environmental regulation?

Look for the conference papers in the journal Theoretical Inquiries in Law about a year from now.

How we got from there to here: Changing conceptions of property and the environment

Discussing my current research on water law in Mandate Palestine and the British Empire more broadly with my law school colleagues last week, I noted (and enjoyed) their surprise and amusement at discovering the gap between the way lawyers, economists, and others involved in environmental policy today think about efficient property regimes in natural resources and the way people did so a century ago.

Ecological & Environmental Worldviews: A Basic Transdisciplinary Bibliography

Blog readers may be interested in a select but extensive bibliography on the science and philosophy of ecology posted by Patrick O'Donnell to our accompanying discussion group. The trans-disciplinary list includes many titles with a historical or legal angle. While you're there, sign up for the discussion group if you haven't done so already.

A Reading Room in Leeds Castle
(David Iliff)

CFP: "Southern Waters" submissions to Southern Cultures

This call for submissions hit my interwebs this morning, and I thought it might be of interest to our community:

Southern Cultures, the award-winning quarterly from UNC's Center for the Study of the American South, encourages submissions from scholars and other thoughtful writers from around the world for our special issue devoted entirely to "Southern Waters." We will be accepting submissions of polished drafts for this special issue through June 30, 2013.

We are interested in reflections on all aspects of water, including music, navigation and mapping, disasters (from drought to flood), property (riparian rights to ownership), faith and cosmology, literature and art, drink, resource and energy (from hydroelectric to fracking), and more. Submissions on water topics such as Southern tears, beach music, bourbon and branch, river baptisms, drowning, resorts, borders, swamps, agriculture and aquaculture, fishing, etc. are all encouraged.

With really great production values and an orientation toward specialists and lay audiences, Southern Cultures (both the magazine and the website) occupy a valuable place in the academy. Check it out and submit! I know we have more than a few riparian specialists among our readership.  

Indigenous Forest and Indigenous Land Rights

"Scrubs and Squatters: The Coming of the Dukuduku Forest, an Indigenous Forest in KwaZulu-Natal, South Africa," by Frode Sundnes, appears in the latest (April 2013) issue of Environmental History. In examining the history of a forest currently the subject of conflicting conservation worries and post-apartheid land claims, the article pays attention to the ways the law has interacted with other factors to shape the physical, social, and cultural contours of today's forest as well the the uses made of it. It concludes:

Sharpsteen on Hoornbeek's Water Pollution Policies and the American States

H-Environment recently posted a review by Bill Sharpsteen of John A. Hoornbeek, Water Pollution Policies and the American States: Runaway Bureaucracies or Congressional Control? (State University of New York Press, 2011):

Drawing on a substantial amount of previous research and what the author cryptically refers to as personal experience, Hoornbeek breaks down the complex state and federal machinery behind the country’s water pollution laws, and how some of it has succeeded while leaving much left to do. As he puts it, “as one looks at the evolution of congressional direction in water pollution control, one sees a continuing process of largely predictable policy outputs, followed by less certain policy impacts, followed by highly uncertain policy outcomes”. Nothing is easy when it comes to a problem as endemic as water pollution.

Environmental history and capitalism in Monsanto v. Bowman

In a surprise to nobody, today the US Supreme Court handed a major victory to Monsanto, the St. Louis-based agribusiness giant. Vernon Bowman, a 75-year old soybean farmer, harvested genetically-modified seeds on his Indiana farm. These were not just any old seeds, and Bowman signed a contract upon purchase agreeing not to save any seeds from the harvest. Like about 90% of all soybeans in the united States, these contained the  Roundup Ready® gene, making them resistant to the herbicide Roundup, also a Monsanto product.

Bowman’s lawyers argued patent exhaustion; Monsanto (and others) argued that patent protection was necessary to recoup their R&D costs, and that without patent protection “there would be no financial incentive to continue investing in technologies with easily replicable features.”

American Society for Environmental History 2013 meeting - report

The recent annual meeting of the American Society for Environmental History in Toronto was chock full of  papers with legal themes, covering a wide range of time periods, geographic areas, and environmental issues.

A panel on Lawscapes: Environmental Histories of Law was full of such papers. Matthew Axtell (upcoming Golieb Fellow at NYU) presented Customs of the River: Legal Change and Shifting Hydrology in the 19th-­‐Century Steamboat Economy, in which he explored the ways in which the Ohio River environment influenced the course of tort law. Adam Wolkoff spoke on Waste, Conservation, and the Question of Improvements in Nineteenth-­‐Century American Tenancy Law, a country-wide study of court decisions on the property-law doctrine of waste and how they related to land use questions. Jamie Benidickson's paper, One Watershed Under Law: An Enviro-­Legal History of the Lake of the Woods, examined legal responses to environmental changes in a trans-boundary water system. Peter Alagona, who has a forthcoming book on the history of the Endangered Species Act, presented Species Complex: Science, Law, and the Indeterminacy of Nature—Or, What Exactly is a Steelhead Trout?, in which he demonstrated a reversal of the oft-observed phenomenon of scientific experts shaping the course of the law; regarding the steelhead trout, he convincingly argued, the law has actually shaped the course of science, by pushing scientists to distinguish between species in ways that conform with the requirements of environmental law. Comments by Douglas Harris emphasized, among other things, the utility of the commons concept for understanding the various issues explored in the session's papers.

Welcome!

Welcome to the Environment, Law, and History Blog!

The connections between the environment, law, and history are deep and pervasive. Many of us, from many disciplines – law, history, geography, and environmental studies to name a few – have been working at the intersections of these fields for some time, but have had no common forum for exchanging views and information. This blog aims to enable such exchanges, allowing us to share ideas and learn about scholarship, conferences, and opportunities for collaboration with colleagues around the world.

Please email me (dschorr (at) tau.ac.il) with any ideas, news, or thoughts.