More wild horses

Last month we posted on the history of the Wild Free-Roaming Horses and Burros Act of 1971. The always-interesting Gallery section in this month's Environmental History has more: "Leisl Carr Childers on The Gus Bundy Photographs and The Wild Horse Controversy".

Childers writes:

In the essay, I trace Gus Bundy's wild horse photographs from their creation as works of art in Nevada's Smoke Creek Desert in 1951 to their publication soon after in the regional press, which presented them dispassionately as illustrations of roundup work. I then follow their trail in the 1950s and 1960s as wild horse advocates read them quite differently as documentary evidence of animal cruelty and used them more than any other visual evidence to gain support for state and federal legislation protecting wild horse populations and regulating roundups. Finally, I turn back to the art world and to two 1960s gallery exhibitions to illustrate how the audience read the photographs in a radically new way from Bundy's original intention because of the path they had taken since he first printed them more than a decade before.

What Hath Lynn White Wrought?

John Nagle recently posted "What Hath Lynn White Wrought?", a short piece discussing White's influential article, “The Historical Roots of Our Ecologic Crisis” (Science 10 March 1967: Vol. 155 no. 3767 pp. 1203-1207). The abstract:

Lynn White Jr.

Lynn White’s 1967 article on “The Historical Roots of Our Ecologic Crisis” famously blamed Christianity for modern environmental problems. White’s historical analysis viewed Christianity for cultivating a dismissive view toward nature and for embracing technology in a way that resulted in unchecked pollution and extinctions. Since White wrote his article, Christian scholars have accepted the challenge that White’s diagnosis presented. Other nations, perhaps most notably China, have experienced crippling environmental destruction even in the absence of a legacy of Christian thought. More positively, White’s thesis has encouraged a generation of scholars to explore the positive aspects of Christian thought for environmental policy.

Everyday Law on the Street

Jotwell's legal history section recently posted a review by Elizabeth Dale of Mariana Valverde, Everyday Law on the Street: City Governance in an Age of Diversity (University of Chicago Press, 2012). I heard Valverde present some of her work on land use regulation in Toronto at a conference a while back; she deals with an area of law with decisive importance for the environment, yet one that is not studied nearly enough from a historical perspective.

Dale writes that she started reading the book,

a study of street-level urban governance in Toronto, because it promised a law and society alternative to [Jane] Jacobs’ work [Death and Life of Great American Cities (1961)]. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians.

E.B. White and William O. Douglas

Mark Weiner's series from last month on E.B. White and mid-twentieth-century liberal internationalism has some interesting thoughts on the connections between thinking on international law and environmentalism in the writings of White and Justice Douglas. For more on Rachel Carson, travel writing, Charlotte's Web, and the connections between the natural world and the international community, see here and here.

Federal lands and conservation

Two recently posted articles on federal lands in the US West coauthored by Michael Blumm have strong historical components: "Federal Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been", coauthored with Andrew Erickson, and "The Past as Prologue to the Present: Managing the Oregon and California Forest Lands", with Tim Wigington. According to the abstracts, the first

Sustainable fisheries

from speakupforblue.com

The August Environment and History has a review by Joseph Taylor III of two books on the sustainability of the fishing industry: Ray Hilborn, with Ulrike Hilborn, Overfishing: What Everyone Needs to Know (Oxford UP, 2012) and Mansel G. Blackford, Making Seafood Sustainable: American Experiences in Global Perspective (U Penn Press, 2012). The review has some valuable insights into the larger issue of the sustainable use of commons resources.

Taylor summarizes one of Hilborn's arguments thus:

An unavoidable consequence of fishing is that fish die; thus pristine and pre-industrial biomass estimates are not particularly germane to modern managers, especially when we exploit the seas so heavily.... ‘Even in systems that are sustainably managed for long-term maximum yield’, Hilborn observes, ‘abundance is expected to be only 20% to 50% of what it would be in the absence of fishing’.

This raises some very interesting questions about what we mean by sustainable use, or the exploitation of resources in a way that leaves them available for future generations. The review also engages some other central issues in debates over commons resources and privatization:

Procedure and environmental history

A little while back Liz Fisher gave an interesting paper at a conference at TAU Law on how courts in New South Wales have approached judicial review of environmental impact assessments. My colleague Issi Rosen-Zvi, commenting on the paper, related Fisher's discussing of Australian courts' manipulation of the law/fact distinction to a centuries-long phenomenon of courts arrogating power to themselves (and taking it away from juries and administrative agencies) by casting questions as ones of law rather than of fact.

Rosen-Zvi's comment is a reminder that current debates over procedural issues such as standing, scientific evidence, class action lawsuits, and the like not only hold great importance for today's environmental law, but have a long history behind them, a history tied up in politics and power struggles over (among other things) which institutions, social classes, professional groups, etc. get to make decisions of environmental import.

William Hogarth, The Bench (1758)

Enforcement of environmental law and changing perceptions of harm

Victor Flatt has posted "Too Big to Jail or Too Abstract (or Rich) to Care" to SSRN. The article asks:

(from Rolling Stone)

Why is it that we do not, in the eyes of many, have effective enforcement of important legal principles governing our financial system and our environment, health, and safety?

One answer given by Flatt is that

environmental despoliation and impacts on human health in the 1960s and 1970s were obvious and visible, and were thought to impact all people. 

Now, however,

the impacts of environmental harm have come to seem less immediate and threatening, and therefore are seen as less of a threat to the social order. In such circumstances, the public zeal, which is expressed in calls for better laws, better enforcement, and public pressure, generally has waned....

Legal literature and the environment

Mark Weiner's post, "The Sound of One Book Clapping", artfully raises (at the end) the issue of the direct, material effects of the legal system and legal practices on the environment. My sense is that the effects of legal publishing on natural resources such as forests and water have been relatively marginal in the context of the publishing industry as a whole, but maybe that's not the case? Have societies at various times preferred particular types of papers, inks, or other inputs into the legal system with a distinct environmental footprint?

courtesy Harvard Law School Library

Settler colonialism and reclamation

In an article she recently posted to SSRN, "Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet", Sarah Krakoff argues for the contemporary normative relevance of history for Indian water rights.

Regulation of the commons in early modern Germany

The latest Environment and History has a very interesting article by Paul Warde, "Imposition, Emulation and Adaptation: Regulatory Regimes in the Commons of Early Modern Germany". There seems to be a quite substantial German-language literature on early modern commons and police regulations, two topics that should be of great interest to those interested in the interactions of law with the environment in history, and Warde's article, among its other virtues, gives Anglophone readers a taste of the field.

Zyg Plater's new book on the snail darter case

Rachelle Adam has brought to my attention the release by Yale University Press of The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River by Zygmunt JB Plater, who represented opponents of the Tellico Dam in TVA v Hill. The case is famous for the US Supreme Court's uncompromising stance in prohibiting completion of a dam that would endanger a small and not particularly charismatic fish, the snail darter. However the drama, and the legal, environmental, political, and social issues raised, were considerably broader.

More legal history of the North Woods

(again by way of Legal History Blog.) Ellen Apperson Brown's "Adirondack Legal History: The Lake George Trespass Case" (not to be confused with North Woods Law), on The Adirondack Almanack website, discusses mid-twentieth-century legal battles over water levels in New York's Lake George. It seems to have been a decades-long, four-way conflict between landowners, a power company dam operator, conservationists/recreationists, and state regulators.

I particularly like the way a quoted 1947 essay by Edmund H. Richard turns property-rights rhetoric on its head:

The Maine woods, cattle pounds, and the origins of law

Mark Weiner's "Worlds of Law" blog has a nice video posting called "Maine Meets Maine" (thanks to Legal History Blog for noting it) in which he talks about the origins of an ancient legal institution, the cattle pound. The piece is an interesting opening for thinking about the historical connections between environment and law, in particular about how environmental history might help us understand the history of law. The shots of old stone walls overgrown with forest are the perfect background.

Environmental history and legal history in the Republic of Nature

The new (August 2013) issue of Environment and History has a review by Lisa Brady of Mark Fiege's The Republic of Nature: An Environmental History of the United States (U. of Washington Press, 2012), which she calls "a sweeping, challenging and utterly engrossing study of America’s past".

Environmental factors, Fiege contends, are present in all aspects of the nation’s past but often have been obscured by a failure to recognise them. Fiege seeks to remedy this by analysing nine historical episodes, most without obvious connections to nature, and by focusing on individuals not known for their environmentalism.

As Brady describes it, the book shifts attention away from the "environmental canon" (e.g. Thoreau, Muir, Carson) to aspects of the American past not typically noted for their connection to environmental history.

Interestingly, at least half of the topics covered by the book are part of the legal history canon—

Environmental law and smoke

January's issue of Environmental History included a review by Jody Roberts of Ducktown Smoke: The Fight over One of the South's Greatest Environmental Disasters, by Duncan Maysilles (UNC Press, 2011). The book deals with the environmental damage and legal battles connected with copper smelting operations of Ducktown, Tennessee around the turn of the twentieth century, including the first US Supreme Court case on air pollution. Roberts writes:

In a time before federal agencies and statutes governed the environment through networks of expertise, law, and budgetary power, individuals took action through local courts and sought damages (largely in terms of lost crops) to their property. The courts moved slowly. Compensation never quite matched the damage done. And the health of the population rarely factored into the discussion. Lawyers filing on behalf of plaintiffs applied centuries-old nuisance laws to address the issue. The smoke, indeed, may have been a nuisance to individual's property, but the operations as a whole wreaked ecological catastrophe of biblical proportions on the area, transforming one of the most diverse ecosystems on earth into a barren wasteland. And the law had little to say about it.