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?

This particular lacuna is yet more glaring in light of the essay's focus on "the environmental-management state" as the first of four "vital areas" of scholarship surveyed; almost every sentence of this section references issues that have significant legal aspects and could have been framed as questions of legal history as much as of environmental history. Beyond this particular essay, I wonder whether American environmental history takes law as seriously as it should, given the prominence of law and legal discourse in American history, and given that human interactions with the environment often have been affected by law, mediated through it, and have shaped the way law itself has developed. (I should note on the other hand that while legal aspects of environmental history may not be given due recognition as a category, many works of environmental history, including many of those cited by Sutter, devote significant attention to legal elements. This in contrast to the situation I have found in legal history journals and conferences, in which the environment is almost entirely absent.)

To close, let me raise the question of how different the field might look with respect to law if we went beyond the American focus of the essay and round table (it's not entirely clear to me if "American environmental history" is supposed to mean environmental history of the US or rather environmental history as practiced by American scholars; the essay seems to focus on the intersection of these two sets). Certainly much of the work on the history of early-modern and industrial-revolution pollution law has focused on places like Britain and France, and much of the history of forest regulation has been written in relation to colonial contexts. Would an essay not focused on the US have treated law differently? If so, what does this say about American environmental history?

More on the responses to Sutter's piece to follow. Meanwhile, let me know what you think!