Aldo Leopold's last talk

Dan Ernst at the Legal History Blog has this post:

A Sand County Almanac was a big book for me as an adolescent, so I’m especially happy to note that Eric T. Freyfogle, University of Illinois College of Law, has posted Leopold's Last Talk, which appears in the Washington Journal of Environmental law and Politics 2 (2012); 236. 

Local vs state regulation

As noted here last month, Joel Tarr presented a very interesting paper on the regulation of natural gas drilling in nineteenth-century Pennsylvania at the 2013 meeting of the American Society for Environmental History. In the wake of the conference he was kind enough to send me a link to a piece he published last year in the Pittsburgh Post-Gazette (kudos to the newspaper for publishing serious stuff like this), "When the Streets Ran with Gas".

Though state-federal relations and federal preemption of state environmental law garner much attention today (e.g. here and here), Tarr's piece reminds us that tensions between environmental regulation by local governments and the law of higher levels of government were and continue to be a major source of conflict regarding the legal regulation of the environment (and not just in the US). The article explains that one of the major political and legal issues regarding shale fracking today, "the right of municipalities to enact regulations controlling natural gas operations within their boundaries without conflicting with state law... was also prominent in the 1880s during the early days of traditional natural gas development and distribution", and goes on to explore litigation and legislation over this issue in 1880s Pennsylvania.

Recovering from the Recovery Narrative

SSRN has "Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization", another paper from Michael Burger (see an earlier post here) on the interactions between American cultural-environmental history and current legal issues. The abstract:

Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States.

The public trust doctrine and origin stories

Michael Blumm and Mary Wood have posted Chapter 1 of their forthcoming The Public Trust Doctrine in Environmental and Natural Resources Law (Carolina Academic Press, 2013) on SSRN. According to the abstract, this casebook has a strong historical component:

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right to challenge governments concerning their management of PTD resources.

Why Water Rights Was Never a 'Right'

Paul Finkelman has posted to SSRN "Why Water Rights Was Never a 'Right': Historical Perspectives on American Water Law". As the abstract explains, the article

explains how the history of access to water in England and early America makes it difficult (but not impossible) to develop a “right” to water under traditional Anglo-American common law. This article ties physical geography – including the amazing abundance of water in the eastern part of the United States, with common law developments. The article also considers, briefly, that right of access to water for religious purposes and access to water under [American] Indian law.

Business influence on legislation

Thomas Jundt reviews Sarah Elkind's How Local Politics Shape Federal Policy: Business, Power, and the Environment in Twentieth-Century Los Angeles (UNC Press, 2011) in the latest issue of Environment and History. Jundt writes:

While other studies have explored national organisations and politics, Elkind focuses on how power was also flowing outward from local business elites to influence both local and national policy. In five case studies centred on a booming Los Angeles from 1920 through the early 1950s, she explores how business associations dominated local politics on environmental issues and influenced federal policy. Because they possessed superior means to frame local discourse, draft legislation, and conduct studies on contentious issues to provide the appearance of an objective basis for the actions of local politicians, business groups successfully insinuated themselves as the voice of the people. Opposition groups simply could not match their resources, public appeal (business provided jobs), or access to officials.

Wild horses, environmental history, and law

The New York Times website has a new video, "Wild Horses: No Home on the Range", which explores the unintended environmental consequences of the US Wild Free-Roaming Horses and Burros Act of 1971. The so-called wild (actually feral) horses or mustangs are a classic example of the culture/nature hybrid that Paul Sutter writes about in his essay discussed here a few days ago, as is the western range in which they compete with livestock for resources.

This environmental history has a rich legal history as well.

Environmental history and law—a new research agenda?

As noted here last Friday, Paul Sutter's recent JAH essay on the state of American environmental history lacks any mention at all of law as a factor in environmental history or historiography. Linda Nash's "Furthering the Environmental Turn", one of the responses published alongside the essay, advances some interesting views on the future of the field that seem to also hold promise for bringing environmental history and legal history closer together. Nash writes that

it is possible to read Sutter’s review as evidence that the field has (still) not advanced strong claims or methods that other kinds of historians must engage. Unless a scholar is already interested in environmental change or fish or birds, environmental history is a subfield that, while capable of producing great books, is not necessarily of larger consequence. Perhaps, then, it is time to reframe the issue. Perhaps environmental historians should acknowledge that theirs is less a coherent “field” of study structured around key archives, topics, or questions... than an orientation. Though in some ways the concern with bringing environments into history is similar to an earlier effort to bring in race and gender, “environment” is not exactly a category of analysis if only because environments are surely more than (social) categories. As the field has become more diverse, what binds it together is a strongly held belief that material environments—for all their sociality, historicity, and constructedness—always matter to history. In Ellen Stroud’s apt phrase, environmental historians “follow the dirt.”

The history of American property

With all the recent posts on the rule of capture, equitable apportionment, and the like, readers may be interested in Douglas Harris's review of Stuart Banner's American Property: A History of How, Why, and What We Own (Harvard, 2011). Harris, who has written on (among other things) the history of fisheries law, explains that

Property law deals with the allocation of scarce resources and therefore is also about the allocation of power. Understood this way, property law can be a lens through which to understand many of the most pressing social issues of the day.

American environmental history without law

The latest Journal of American History has a "state of the field" essay, with an accompanying series of responses, on American environmental history (with free access). The essay, by Paul Sutter, explores the way in which the field has developed since a round table published by the journal in 1990, and references a large amount of literature which should be of use to readers of this blog.

A major theme of the piece is the move from a conception widespread among the founding generation of the field which focused on a divide between humans and nature, to the currently prevalent "hybrid" view, according to which nature and culture have interacted in complex ways. This change has implications not only for the assumptions that guide historical scholarship but also for the normative implications derived from it.

Given the depth and breadth of the field of environmental history today, Sutter is necessarily and avowedly selective in the topics he covers, but one absence that was glaring to me was (not surprisingly) the lack of any mention at all of law as a factor in environmental history. I mean this not as a criticism of Sutter but as a point upon which to reflect. Was law left out of the survey despite recognition of its importance, or was it ignored because it is not on Sutter's radar (as seems to be indicated by his discussion of lacunae in the essay, pp. 99-100) and is generally seen as peripheral to the field?

More on the rule of capture

There seems to be a lot of interest in the "rule of capture" for property in natural resources (see here and here). In the latest entry into the field, Joseph Dellapenna has another article on water law with a historical dimension (see also here) up on SSRN: "The Rise and the Demise of the Absolute Dominion Doctrine for Groundwater".

A realist analysis of nuisance law's historical achievements

Just out in the Journal of Law and Society is Ben Pontin's "The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements". Joining the author's previous work on environmental law in nineteenth-century Britain (e.g. here and here), the new article uses a legal realist lens to examine the achievements and limits of Victorian-era nuisance law in bringing about environmental improvements.

Conservation in Malawi

The latest issue of Environment and History (not to be confused with Environmental History; the former has a more European orientation while the latter's is more American) has a few book reviews of note.

Elias Mandala reviews Wapulumuka O. Mulwafu, Conservation Song: A History of Peasant- State Relations and the Environment in Malawi, 1860-2000 (White Horse, 2011) (the book was also reviewed here and here). The book seems to join a significant body of literature that shows colonial conservation efforts being shaped by misunderstandings of the environment and motivated by the desire to save the environment from the supposedly destructive practices of native peoples.

Settler Contract or Natural Contract?

Last week I participated in a very interesting conference on the topic of legal diffusion put on by Juris Diversitas and the Swiss Institute of Comparative Law. Bronwyn Lay, a lawyer, writer, and scholar, gave a thought-provoking paper entitled "Settler Contract or Natural Contract". Hopefully it will be published soon; meanwhile, here's an excerpt:

Interstate equitable apportionment of water

Josh Patashnik has posted "Arizona v. California and the Equitable Apportionment of Interstate Waterways" to SSRN. The article uses historical research and analysis to explain how and why the US Supreme Court arrived at its decision on interstate apportionment of water in Arizona v. California (1963):

Fifty years ago, the Supreme Court resolved a decades-long dispute between Arizona and California over the waters of the Colorado River. At the heart of the case’s legacy is a paradox of great significance. There is widespread agreement that the Court reached the right result, giving Arizona the water it needed to develop a dynamic, modern economy. Yet there is equally widespread agreement that the Court’s reasoning was wholly unpersuasive, resting on an egregious misreading of a thirty-five-year-old federal statute. How can this be? Was there no legally principled way to rule for Arizona, where the equities in the case lay?

Paul Hermans,  Horseshoe Bend, Page, Arizona

The answer is that the Court’s predicament was one of its own creation. In a series of rulings over the preceding half-century, it had placed prior appropriation — the time-honored Western water law principle of first in time, first in right — at the center of its doctrine of interstate equitable apportionment of water. This error threatened to make equitable apportionment distinctly inequitable in the Colorado River case.

This Article traces the Court’s equitable-apportionment jurisprudence over the first half of the twentieth century. Through original archival research, the Article seeks to demonstrate that a majority of the Court felt constrained in Arizona v. California by the rule of interstate prior appropriation, leading it to resort instead to the dubious piece of statutory interpretation that has been so heavily criticized. Because equitable apportionment and prior appropriation are fundamentally at odds, the Court would be better served by abandoning its (understandable) reluctance to employ a truly equitable, fairness-oriented balancing approach in dividing interstate waterways.

Environmental history, capitalism, and adaptation to climate change

Here's someone who doesn't think we can learn very much from history about climate change (and apparently thinks that Geoffrey Parker, a great military historian, is just another "Ph.D. historian", of which there are apparently too many. Though he does grant that "Dr. Parker has some interesting things to say".) Matthew Kahn writes on his blog:

Is long run history relevant for thinking about how we will adapt to climate change?  I don't think so.   Our world economy is changing so rapidly that I learn little about our future ability to adapt from 16th century Europe.

He goes on to write that Parker "ignores the role that capitalism plays as an evolutionary force in helping us to adapt to new challenges. He ignores the innovative possibilities of modern capitalism." Maybe so, but history might have a thing or two to say about where the faith in "the innovative possibilities of modern capitalism" comes from, as well as the relationship between this faith and the employment of Darwinian concepts.

A 16th century view of adaptation

The history of environmental law through the history of a law review

Gerald S. Dickinson and Sheila Foster have posted "Stasis and Change in Environmental Law: The Past, Present and Future of the Fordham Environmental Law Review" on SSRN. The abstract:

Dellapenna and Gupta on the evolution of water law

Joseph Dellapenna and Joyeeta Gupta have posted to SSRN "The Evolution of Water Law Through 4,000 Years", a chapter from the forthcoming Sovereignty and the Development of International Water Law. The abstract explains: