Colonialism and environmental harm

Gustavo Rojas-Páez recently posted "Whose Nature? Whose Rights? Criminalization of Social Protest in a Globalizing World". In it he asks:

Why has the law historically taken both social and environmental harm for granted? Who has benefited from the historical silences of the law in regard to social suffering and environmental harm? The answer to these questions, while not straightforward, lies largely in the restricted way in which nature’s relationship with human beings has been theorized by social science and legal scholarship.

The article goes on to discuss Vattel, Grotius, the School of Salamanca, and their connections to contemporary conflicts over natural resources in places such as Bolivia and Columbia.

The founding fathers and climate change

The connections between understandings of the environment and constitutional and legal issues, is a large (and relatively unexplored) topic. Over at the wonderful Public Domain Review, Raphael Calel's "The Founding Fathers v. the Climate Change Skeptics" discusses the passion with which America's "Founding Fathers" insisted that settlement of the North American continent was leading to (welcome) climate change. Building on Antonello Gerbi's learned and entertaining The Dispute of the New World: The History of a Polemic, 1750-1900, Calel shows how important the issue of climate change was to men such as Thomas Jefferson, Benjamin Franklin, and James Madison:

Far from a stronghold of climate change skepticism, as the United States is sometimes seen today, the country’s founders were vocal proponents of early theories of man-made climate change. They wrote extensively in favor of the theory that settlement was improving the continent’s climate, and their efforts helped to lay the foundation of modern meteorology.

Here's a taste from a canonical constitutional text--Alexander Hamilton in the Federalist No. 11:

Men admired as profound philosophers have, in direct terms, attributed to [Europe's] inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America–that even dogs cease to bark after having breathed awhile in our atmosphere. Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness!

Constantino Brumidi, Alexander Hamilton

Courts and the Indian environment

Amit Singh recently posted "Judicial Activism on Environment in India". The abstract:

The Indian judiciary demonstrated willingness to exercise its power whenever the political/executive organs of the state failed to discharge their constitutional obligations effectively. This willingness has been often termed as ‘judicial activism’. Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This period was characterized not only by administrative and legislative activism but also judicial activism. A subset of this has been environmental activism, which has developed in India in a very major way. One of the reasons for judicial activism in specific environmental cases has been the relaxation of the rule of locus standi giving a chance to the public to approach the Court under Articles 32 and 226 of the Indian Constitution. Also, the recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the right to enjoy a clean and healthy environment.

The release of energy

Al Brophy at the Faculty Lounge and Karen Tani at the Legal History Blog recently commented on John Orth's recent "'The Release of Energy': Reflections on a Legal History Trope". The trope originates with  J. Willard Hurst, "the dean of American legal historians" and also early environmental historian, who used the phrase to describe the pro-development slant of American law in the nineteenth century. Among the legal changes of the period:

Willard Hurst (U. Wisc. Law Library)

Property, once conceived in patrimonial and static terms, came to be seen as a dynamic asset to be exploited, leading to pro-productive rules favoring prior appropriation of water and fugitive minerals such as oil and natural gas, the refusal to recognise easements for light and air, and the abandonment of traditional restraints in the law of waste.

Orth goes on to doubt the utility of the phrase:

I will venture to say that I find the ‘release of energy’ to be an unhelpful trope in legal history. As the American story makes plain, energy can be released by repealing statutes or by adopting them. It can be released by legislatures or by courts. It can be released by changing the law or by leaving it unchanged. To the extent that it means ‘the power to make contracts freely’, it may be no more than a polite expression for laissez-faire. To the extent that it means ‘placing the nation’s natural wealth at the people’s disposal’, it may be simply a euphemism for Gilded Age corporate giveaways.

Modern land-use law and the ghosts of the Lochner era

Billy Want has posted "Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases", in which he argues that the discredited constitutional doctrine of "economic substantive due process" is making a comeback in the jurisprudence of the US Supreme Court. The abstract:

The US Supreme Court in 1925

This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression. The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013. Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts. Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion. In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests. The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government. This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process. The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation. To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

Interdisciplinary research

Environmental Law Prof Blog's Dave Owen recently posed on "Interdisciplinary Research and Environmental Law", a topic that is relevant for Environment, Law, and History. Based on his own experience and further empirical research, he wrote an article with Caroline Noblet on the subject. Owen writes:

(from Michigan Tech)

For those who prefer the Cliff Notes version, here are a few key conclusions from the study (most of which are intuitive but some of which are potentially surprising or controversial):

- Environmental law professors are generally very interested in conducting interdisciplinary research, yet it forms a relatively small part of their research portfolios;

- Conducting interdisciplinary research successfully requires a large up-front time investment—you need to take time to get to know your collaborators and learn about their fields, and they have to get to know you—and the need for that time investment is one of the primary barriers to successful collaborations;

- Publication systems and institutional divisions do create pressure toward traditional disciplinary work (in other words, the legal academy generally doesn't push professors to become interdisciplinarians);

- Compared to tenured faculty, junior faculty tend to perceive more pressure to do traditional disciplinary work, though that pressure is by no means universally felt; and

- Law professors may be more interested in, and prepared for, collaborations with non-lawyers than the non-lawyers are for collaborations with lawyers.

And a few recommendations:

- Law schools and universities should work hard to create opportunities for informal contact between law professors and other faculty—in research settings, social settings, and in the classroom;

- Law schools ought to abandon any tenure or promotion policies that favor law review or single-author publications over peer-reviewed or team publications, and they ought to put their new policies in writing, so that junior faculty know about them;

- Visiting assistant professor and fellowship programs should consider adding an instructional component focused on research methodologies (and, perhaps, allowing full-time faculty to participate in the program);

- Law professors interested in working beyond the boundaries of their field should be aware that they will need to spend some time educating their potential partners about how legal research works, what kinds of questions it typically focuses upon, and how it could contribute to a larger project.

If any readers, including those not working in law schools, have thoughts on this kind of interdisciplinary research, please let us know.

Environmental law in the UK

William Turner, The City (1961)

Ben Christman recently posted "A brief history of environmental law in the UK", in which he discusses what he sees as "four key ages of UK environmental law":

• industrialisation: public health and pollution
• after World War II: planning
• late 20th century: sustainable development, internationalisation and neoliberalism
• 21st century: democracy, devolution and decarbonisation

Though I'm not sure I would agree with his claim that "industrial pollution and sanitation were easy victories with straightforward win–win solutions that often enjoyed broad political support", the piece is a concise and thoughtful survey and analysis of the subject.