Dirt lawyering and environmental history

(Adam Wolkoff's third post on teaching the history of law and the environment. Links to the rest of the posts are here.)

One of the hardest things about switching from the discipline of history to the study of law is learning how to slow down. Undergraduate and graduate history students read hundreds of pages a week, learning to analyze a monograph or article by figuring out its main arguments and reviewing its evidence to see if those claims hold up. They also become adept at synthesizing large bodies of historical literature to better situate the primary and secondary sources they read into those frameworks.

These skills should translate well into law school and to the categorical reasoning it purports to teach. But law school is not a BarBri cram course. Yes, students obsess over their outlines before final exams, trying to fit everything they’ve learned into a logical framework so they can be ready for the absurd fact patterns their professors throw at them. Yet an effective legal outline describes the relational quality of law, rather than a set of black letter certainties. Law students learn that every transaction presents a moment of legal possibility, in which the doctrine accepted as law in the past intersects with the understandings of the parties in the present and their beliefs about what a judge, jury, or the wider community might say in the future.

Contingency makes for compelling history, too, challenging the impulse of many writers and lecturers to produce deterministic narratives about the past. But it also fractures the story, producing histories that can deny the realities of structural power, or give too much authority to specific events or actors. Think about the history books that actually sell at Barnes & Noble: One (month or secretary of state or hockey goal) That Changed the World.

Undergraduate classes teaching law and environmental history can draw on this creative tension to give students new ways of seeing the nature and the built landscape. I’ve always related to the experience that William Cronon describes in his prologue to Nature’s Metropolis of growing up looking out the car window as the landscape shifted from the crowded, polluted, and artificial city to the bucolic countryside. “One of the pleasures of childhood and adolescence,” he writes, “is that one can experience emotions of this sort without worrying too much about their possible contradictions.” By giving students a grounding in the laws and practices underlying these landscapes, we not only dispel the illusory walls between urban and rural, nature and artifice, but help them understand the legal devices that define them.

It’s teaching the art of what real estate practitioners call “dirt lawyering,” helping students see

Air and ground rights
Marcel Breuer's proposed Grand Central tower (1968)
Breuer Papers (Smithsonian)

the principles underlying the landscape and the events that put those rules to the test. Nearly every class I teach seems to begin with drawing that square that property professors call Blackacre. It’s our platform for understanding what novel impositions people brought to the landscape in each era and how they contested them through formal and informal means. For the curious, it’s a skill that helps solve the mysteries of everyday life and its inequalities. “Why are there so many chemical companies and refineries in North Jersey?” my students asked. “Why are there no Whole Foods in Newark?” “Why don’t brownfields get cleaned up?” Even for those who never plan to be activists, teachers, or lawyers, “dirt lawyering” will be there whenever they sign a lease, build a fence, or look out their front windshield.

A transnational history of asbestos

Perhaps the most litigated environmental issue in US history is harm from asbestos. In the latest issue of Environmental Justice James Rice's "Asbestos and the Globalization of an Occupational and Environmental Hazard, 1960–2011" takes a global view of the subject. The abstract:

Anthophyllite asbestos, Georgia (USGS)

Asbestos is a natural mineral with observable, repeatable effects that have long been observed and repeated. Despite experiential and scientific evidence illustrating its deleterious impact on human health the worldwide production and consumption of asbestos remains substantial. The objective of the present study is to highlight the global decline and resurgence of asbestos over the period 1960–2011. This history is characterized by the predominance of asbestos in the industrialized countries until 1970, decline thereafter, but the precipitous increase of asbestos consumption in the developing countries, particularly the industrializing middle-income nations. In turn, global asbestos consumption in 2011 approximates that observed in 1960; notwithstanding voluminous evidence illustrating it is associated with asbestosis, lung cancer, and mesothelioma. Further, I highlight the rhetoric of denial consistently employed by the industry to generate uncertainty and sustain the demand for asbestos. The conclusion reiterates the need for environmental justice scholars and activists to consider the transnational movement, or risk transference, of recognized occupational and environmental hazards.

I would add that there is room for comparative legal research here, as well: Why has tort law put asbestos companies out of business in the US, but apparently allowed them to flourish in other countries?

TVA v Hill symposium issue and conservative anti-environmentalism

I just came across a symposium issue run by the Tennessee Law Review last year on TVA v Hill (1978), the "snail darter case", in which the US Supreme Court upheld a strict interpretation of the Endangered Species Act to prohibit the operation of a dam that had been built at great cost. The table of contents for the issue is here, and the foreword to the volume is here. The issue includes an article by lead attorney Zygmunt Plater, whose book and digital archive we mentioned last year.

Fran Scheidt,
Aerial Photo of Farmland Along the Little Tennessee River (1978)

Just having reread the case earlier this week, in preparation for a discussion with a group of environmental historians at Tel Aviv U., I was struck by something I hadn't noticed before: An amicus brief (a brief filed by a "friend of the court", not a direct party to the proceedings) in support of the TVA's position was filed by the Pacific Legal Foundation, an organization founded in 1973 by former Reagan staffers and self-described as working, among other things, to defend "the fundamental human right of private property" and "to promote sensible environmental policies that respect individual freedom and put people first".

Now, which side should a libertarian organization devoted to fighting big government, protecting "the fundamental human right of private property", and "promoting sensible environmental policies that respect individual freedom and put people first" have taken in the TVA v Hill fight?

More foundation stories

Environmental Law Prof Blog has the text of Nicholas Robinson's recent tribute to Professors Joseph Sax and David Sive at the Pace U. School of Law Garrison Lecture, compellingly describing, among other things, the 1960s environmental litigation over development in the Hudson River Valley and expansion of the Sierra Club to the eastern US. Robinson also mentions Lloyd Garrison's involvement in the Storm King litigation. Robinson writes that "public interest litigation to safeguard the environment was born in these cases".

Robert Rodriguez, Jr., View of Storm King Mountain from Breakneck Ridge
(Scenic Hudson)

Con Ed's Proposal for Storm King Mountain Power Plant
(Scenic Hudson)

Robinson also reflects on the worldwide influence of Sax and Sive:

The ripples from their professional work have spread far and wide. It is fair to observe that the reforms that Sive and Sax engendered in time produced Principle 10 of the Declaration of Rio de Janeiro on Environment and Development, adopted by the UN 1992 Earth Summit. This principle embodies many of the reforms that they urged in the 1970s and beyond: rights of access to environmental information, to pubic participation in environmental decision-making and to access to the courts. These are today recognized as global norms. The combined legacy of their lives is global.

Legal geography

(Adam Wolkoff's second post on teaching the history of law and the environment. Links to the rest of the posts are here.)

Environmental history courses present fascinating questions about scale. Ted Steinberg’s synthetic Down to Earth (2012), which I use as my primary textbook, opens on a geological time frame, asking readers to think about how the latitudinal orientation of North America, the evaporation of its great inland sea, the rise of the continental divide, and the journeys of glaciers shaped the rise of its civilizations. But the core of his narrative are case studies of how ordinary people like fishermen, poachers, coal miners, and farmers understood their connection to nature.

Nineteenth-century Hudson River School paintings, like Thomas Cole’s View from Mount Holyoke, Northampton, Massachusetts, after a Thunderstorm—The Oxbow (1836) nicely illustrate the question of scale. These are not impressionistic landscapes: foreground and background are rendered in crisp detail, and the viewer decides whether to linger on the details of the artist’s painting kit or to widen his or her

view of the magnificent scenery. But Cole’s decision to take in everything the human eye could see from Mount Tom strongly directs the viewer’s attention toward the wider scale, in which unseen farmers have deforested, gridded, and cultivated a floodplain. 

The scope of an environmental history class is also a pressing subject. As an Americanist, I structure the course around a survey of the major events shaping the place we now call the United States. In other words, what were the connections between law and nature in Colonial New England, or along the Erie Canal during its years of industrial development? Most students come to class with a basic timeline of these events in their heads, so the class offers an opportunity to deepen their appreciation of these changes as legal and environmental events. 

An alternative approach would be to gather case studies of environmental phenomena across global regions and compare how different societies regulated those conditions. Comparing land tenure systems is a classic way to understand a social and political order, as are histories of water, forestry, and sub-surface mining rights. But because of the multiple interdisciplinary challenges of teaching a globally-oriented course—comparative history and law—teaching this course in a coherent way demands a collaborative synthesis across many fields, which, to my knowledge, does not exist: history, law, anthropology, sociology, environmental science, and other sources of customary environmental practice. 

Postmodernism and environmental policy

Shi-Ling Hsu has posted "The Accidental Postmodernists: A New Era of Skepticism in Environmental Policy". Though the article focuses on the present, it provokes thoughts about changes in environmental lawmaking over time. The abstract:

René Magritte, La trahision des images (1928-29)

Environmental law and policy conflicts seem to have entered a new phase. The emergence of complex problems such as climate change and of complex technologies such as hydraulic fracturing and genetic modification have created new political and legal schisms that no longer break down predictably along "pro-environment" versus "pro-business" lines. Rather, a new era of skepticism seems to be taking hold in which antagonists spar over the epistemic legitimacy of certain claims made in support of a policy position. Environmental law and policy conflicts thus divide antagonists into two camps: self-styled positivists – scientists (physical, chemical, biological, and social) and environmental postmodernists, who seek to undermine the legitimacy of the positivists.

Environmental postmodernists urge us to take a skeptical look at the claims of self-styled positivists, because they suspect their epistemic claims are part of an attempt to gerrymander environmental law. Some environmental postmodernists challenge the use of cost-benefit analysis, and others are climate skeptics, who contest the prevailing concern over global climate change. These new schisms produce strange bedfellows, but environmental postmodernists share a common objective of creating doubt and skepticism.

I argue that environmental postmodernism can make a contribution: it can highlight dangerous policy situations in which a concentration of esoteric information can generate a power imbalance, and it can highlight the usefulness of transparency measures aimed only making information more publicly accessible and otherwise broadening process inputs. If this is the upshot of environmental postmodernism, it will have articulated a policy means of power diffusion, and therefore gone beyond the failures of Twentieth-century, post-structuralist postmodernism.

Canadian environmentalism and liberal internationalism

By way of Canadian Legal History, we learned of "Rights of Passage: The Intersecting of Environmentalism, Arctic Sovereignty, and the Law of the Sea, 1968–82", by David Meren and Bora Plumptre. The abstract (for the French version, go to the blog or the journal site):

The Manhattan
(Auke Visser's International Esso Tankers site)

This essay brings environmental and diplomatic history into conversation in order to examine the Trudeau government’s response to the 1969–70 voyages of the oil tanker Manhattan through the Northwest Passage. By passing the Arctic Waters Pollution Prevention Act and extending Canada’s territorial sea to 12 miles, Ottawa successfully instrumentalized the heightened environmental concern of the period in order to press Canadian claims to sovereignty in the Arctic. The essay demonstrates that this custodial approach was consistent with the functionalist tradition in Canadian liberal internationalism. More broadly, it reveals the promise of re-examining Canadian international history through the prism of environmental history.

Teaching the history of law and the environment

I’d like to thank David Schorr for inviting me to post my thoughts on teaching law and environmental history, and for his work in developing this blog, which I have found to be a vital resource for keeping up-to-date on this rapidly developing field.

“Legal Issues in Environmental History” was a course description developed by the New Jersey Institute of Technology’s innovative undergraduate program in Law, Technology, and Culture, headed by legal historian Alison Lefkovitz. The goal is to teach students how humans have regulated and managed the natural environment in North America from the colonial period to the present. 

By looking at the evolution of environmental rules from customary use rights to modern state-based regulation, students learn how ideas about nature, law, and the market have changed over time. Hopefully, they leave the class with a better sense of the possibilities and pitfalls that surrounded the federalization and, increasingly, the globalization of environmental law.

I’ll start this discussion by suggesting what the course doesn’t do. As you can see in the syllabus, the course tries to avoid a teleological history of federal environmental law that follows a path from the shortcomings of local governance to the virtues of a national system. Instead, it assumes that people in each period of American history we study had particular rules about environmental management and analyzes how these practices were grounded in the social, cultural, political, and economic conditions of their time and place.

As a result, the course steers away from instrumentalist explanations for changing practices of governance. I use historical examples to introduce important theories about legal and environmental change (Marxism, the “Release of Energy,” or the ever-popular “Tragedy of the Commons”), but leave it to the class to decide whether the facts support these approaches.

Frank Leslie's Illustrated Newspaper, Aug. 13, 1859
(from Ted Steinberg, Down To Earth (2002), 161)

Finally, using Dirk Hartog’s classic article "Pigs and Positivism" (1985) as our theoretical starting place, I try to shift the conversation away from sharp lines between “law” and “custom” and toward questions about nature and power. As a result, the course integrates topics, such as labor history or the role of gender and race in shaping law, that ordinarily get left out of environmental history courses focused on land use, pollution, and resource extraction. It also leaves space to discuss non-elite views of law and nature.

In an upcoming post, I’ll write about some of the topics discussed in the class and the theoretical and practical problems of teaching them.

[Links to all of Adam's posts are here]

Legal hierarchies of Australian animals

Steven White has posted "British Colonialism, Australian Nationalism and the Law: Hierarchies of Wild Animal Protection". The abstract:

credit: Fir0002/Flagstaffotos

A combination of animal welfare law and nature conservation law establishes a hierarchy of protection for wild animals in Australia, with rare, threatened or endangered native animals receiving the highest levels of protection, plentiful native animals lying in the middle — sometimes well protected, sometimes not — and introduced wild animals at the bottom. In reading beyond the accounts of contemporary law, especially in sociology and environmental history, a plausible argument can be made for the proposition that this prevailing general schema of protection reflects an early 20th century assertion of a distinctive Australian identity, combined with the emergence of a conservation ethic and the decline of attempts to acclimatise British wild animals in Australia. Prior to federation the legal protection of wild animals was quite different, with native animals receiving little protection until the late 19th century. Introduced wild animals were initially protected to allow their flourishing, but by the late 19th century were increasingly being characterised as ‘pests’ and their protection wound back. This article explores how and why attitudes to native wild animals and introduced wild animals in Australia have changed over time, and how these changes continue to be reflected in Australian law.

Welcome, Adam Wolkoff

It is with great pleasure that we welcome Adam Wolkoff to Environment, Law, and History. [Links to his upcoming posts are here]

Adam is working on a dissertation that combines legal and cultural history to analyze how multiple sources of property law shaped the development of rural and urban landscapes in the nineteenth century United States. He focuses on patterns of conflict and cooperation between landlords, tenants, and their creditors that emerged with the spread of free labor and the rise of commercial agriculture. He gave an interesting paper on the topic at ASEH 2013.

Adam teaches a course at the New Jersey Institute of Technology on "Legal Issues in Environmental History"--very likely the first course of its type anywhere--and he's going to be blogging here about his experiences teaching the course. I'm really looking forward to reading about it!

If you, or anyone you know, has taught about the intersection of environment and law in history, please let me know.

Environmental legislation

Susan Olzak, Sarah Soule, Marion Coddou, and John Munoz recently posted "Friends or Foes? The Impact of Political Allies and Social Movement Activity on Environmental Legislation in Congress". The abstract:

This paper challenges implications from leading social movement theories of policy change by presenting results that cast doubt on the benefits of having elite allies. Using event history techniques, we show that bill sponsors identified as strong allies of the environmental movement have a significantly lower chance of enacting pro-environmental legislation. Instead, successful legislators had environmental voting records closer to the median voter in Congress, are members of the dominant political party, and hold positions as chairs of environmental committees. While environmental lobbyist groups positively influence the passage of legislation, contrary to conventional wisdom, peaceful protest has no significant effect on legislative outcomes.

ASEH 2014

The American Society for Environmental History's 2014 meeting begins tonight in San Francisco.

There will be a lot of papers and panels with legal themes - if you're attending, please consider sending me some reports for posting on the blog.

Lobster diplomacy

By way of Canadian Legal History, we have news of the recently published "Development and Diplomacy: The Lobster Controversy on Newfoundland's French Shore, 1890–1904" by Kurt Kornesky. The abstract:

Winslow Homer,
Three Boys in a Dory with Lobster Pots (1875)

The matter of French claims in Newfoundland probably caused more acrimony and outcry among the professionals and businessmen who dominated the Newfoundland legislature in the later nineteenth century than any other single issue. Most historians of the ‘French Shore problem’ have followed Fred Thompson's lead in analysing the history of the French shore by focusing on high-ranking diplomats and the colonial elite. They have also tended to view the conflict as involving primarily three groups: the French and British diplomatic corps and the Newfoundland mercantile and political elite. Using a well-known late nineteenth-century dispute over the lobster fishery as a case study, this paper reconsiders the history of the French Shore by drawing on reports about conditions on the Treaty Shore and on methodological and theoretical insights that have emerged since Thompson published his pioneering work in 1961. It argues that a wider array of groups exerted significant influence in how the controversy over lobster on Newfoundland's west coast in the late nineteenth century played out. Viewing the controversy from the perspective of these groups reveals the extent to which those outside of formal policy circles influenced the shape and viability of official agreements.

In Memoriam: Joseph Sax

Earlier this week the great environmental law scholar Joseph Sax passed away, at age 78. Read the appreciation by Holly Doremus at Legal Planet.

As noted by the New York Times, Professor Sax was perhaps best known for his advancing the concept of "public trust doctrine" as an organizing concept of environmental law. Before Sax "revived and re-invented" (as Carol Rose put it) this now-widespread idea in his seminal article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, few had heard of the doctrine. Since then, thousands of articles, briefs, and court decisions in the US and other countries have cited as a matter of course to Justinian and Matthew Hale and argued for the relevance of the doctrine to various environmental issues (Fred Shapiro counts 856 citing legal articles).

As Rose explained in her 1998 symposium article, Sax's 1970 article can be understood as his response to ascendant theories of agency capture of the regulatory process and then-new public choice theory, which provided an explanation of the ability of small but cohesive groups to dominate the policy-making process to the detriment of the wider public interest. The public trust doctrine as advanced by Sax was less about property (as was the original doctrine) than about administrative law: Sax wanted courts to be wary of the regulatory process that often sacrificed public good to private interest.

Sax's passing is an opportunity to reflect on the fact that even ubiquitous and seemingly timeless legal ideas have a history, and that history includes not just formal sources of law, but also scholars and others who mold it and change it to fit changing times. It is also an opportunity to be grateful for the deep and wide body of public-minded scholarship (see Doremus's post) left for us by this giant of the law.

Emergencies, the public interest, and legal change

Over at Legal Planet the University of California's Richard Frank recently posted "California Enacts Emergency Drought Legislation: State Water Rights Reforms a Key Part of the Legislative Package", in which he notes that the severe drought from which California is suffering this year has apparently "prompted enactment of water reforms that proved impossible just five years ago", in particular increased penalties for illegal diversions and modest regulation of groundwater use. Frank writes:

Let’s hope that these new, modest changes to California water law signal the beginning, rather than the end, of meaningful efforts to reform California’s systems of water rights enforcement and groundwater regulation. Recent political and environmental history demonstrates that it often takes a major crisis to motivate government decision-makers to enact often long-overdue reforms. For that reason, perhaps some good can come out of drought conditions that currently hang like a meteorological sword of Damocles over California’s economy and environment.

Having spent the last week in California archives, working on my research on the history of water law, I was struck by one of the two great sensations known to all historical researchers--the feeling that it's all happened before. (The other one is the feeling that things back then were really different.)

Specifically, at UC Riverside's Water Resources Archives (an incredibly rich collection with a friendly and helpful staff) I came across a document authored by S.T. Harding--like Frank, a UC professor--nearly a hundred years ago, entitled "Effect of War Emergency Conditions on Irrigation Water Rights and Service". 1918, the year in which Harding wrote the piece, was a year not only of increased demands for California food production, due to the World War, but also of drought, like 2014. Harding wrote:

from the Sidney T. Harding Papers,
Box 26, Item 134-6
Water Resources Collections and Archives,
University of California, Riverside Libraries

The situation was met... by methods which would have been considered drastic and practically unenforceable under normal conditions but which under the war emergency conditions existing in 1918 were not only acquiesced in by the parties affected but were carried out largely with their assistance and co-operation.

Harding wondered whether the emergency modification of the rules of California's water-rights regime would have lasting effects:

It is difficult to see how the general results can be anything but beneficial in the future of water right development. The present experience in going directly to the result desired even though the method may be new, will tend to remove prejudices against changes which are based merely on their newness. The use of public authority to handle matters involving public water supplies as in 1918 brings to the front the public interest in the utilization of the water resources and the right of the public interest to be more largely considered in the future than it has been in at least some cases in the past. It is to be hoped that a greater public interest in such matters may be maintained in the future after the war emergency has passed which will be exercised not as under necessity in 1918 to the injury of some individuals but on a broad basis to secure the greatest general benefits from the use of the available water supplies.

California's water law did undergo some important developments in the 1920s, though I believe that the extent that this may have been due to the effects of war and drought has not been explored.

The first National Scenic Area

Michael Blumm has posted "The Struggle Over the Columbia River Gorge: Establishing and Governing the First National Scenic Area", a review of Kathie Durbin's Bridging a Great Divide: The Battle for the Columbia River Gorge (Oregon State UP, 2013). The abstract:

This review of the late Kathie Durbin's final book discusses the unlikely enactment of the 1986 Columbia River Gorge National Scenic Area Act and the events leading up to it. The statute's circuitous route through Congress was managed by Oregon's Senator Mark Hatfield, who convinced a skeptical President Reagan to sign the law he essentially opposed. Durbin's account examines both the legislation and the first quarter-century of its implementation. Protecting scenery the 85-mile long, 292,000-acre area with a majority of the land owned by over 50,000 residents required difficult balancing, and Durbin explains the many compromises struck in the legislation and ensuing management by an interstate compact commission and the U.S. Forest Service.

The Gorge Commission, through its authority to approve county zoning ordinances in the Scenic Area, fundamentally changed local land use practices. The legislation also directed the Forest Service not only to manage its land to preserve the Gorge's scenery but also gave the agency unprecedented authority to regulate private lands in so-called special management areas, consisting of some 114,000 acres of the area's most environmentally and visually sensitive lands. Durbin's book offers many insights of federal-state and state-local relations that should be of value to other efforts to preserve natural resources in areas dominated by private lands. The book also spotlights a number of controveries involving air quality, treaty fishing rights, dam removal, and efforts to site wind farms, a destination resort, and an Indian casino. Natural resources law would benefit from more case studies such as that provided by Durbin's engaging look at the Columbia River Gorge.

A legal history of zoos

Over at Jotwell, Angela Fernandez's "Forget About Noah's Ark" reviews Zooland: The Institution of Captivity by Irus Braverman (Stanford U.P., 2102). Fernandez writes that the book "is a wonderful read on a topic that is of both historical and current interest". From the review:

Tiger at the Audubon Zoo in New Orleans (Wikimedia Commons)

Legal historians will be interested in the shift Braverman describes from zoos as sites of entertainment, a variation on the old menagerie style collection of animals, preferably exotic, that would then perform various colonialist and empire-building functions, to the (arguably) more laudable conservationist rationale and its accompanying practices often targeted at educating adults and children about species and habitat decline and destruction. The real animals are “just the hook” as one of Braverman’s interview subjects, Jim Breheny of the Bronx Zoo, puts it. (P. 41.) They are meant to draw you in. What they draw you into, as Braverman’s book details, is a world of contradictions. Braverman calls what she has found a Foucauldian “power of care,” minute in its regulation of the daily lives of zoo animals and profound in its reach into such fundamental aspects of the animals’ lives as the question of which animals are allowed to reproduce and which are not, which will be put on board “Noah’s Ark” and saved and which will not. The regimentation of the animals’ lives serves another disciplinary end: “Whereas once zoos were in the business of entertainment through taxonomic exhibitions,” Braverman writes, “now they discipline the public into caring about nature.” (P. 90.)

Braverman locates the origins of the shift from the American zoo’s focus to conservation and care in the 1970’s. The Endangered Species Act of 1973 is an important marker, as it prohibited zoos from obtaining new animals from the wild. This put pressure on zoos to coordinate their efforts and their animals in an attempt to maintain a maximum amount of genetic diversity in their animal populations using the “living founders” that came from the wild.

More at Jotwell.