Law on Nantucket

G. Edward White recently posted "Law on Nantucket", a rumination on the ways people have written about the island and its law. The essay concludes (note in the original):

Underneath Nantucket’s beauty, benign atmosphere, and apparently paradisial prospects lay, as all islanders knew and visiting mainlanders quickly understood, its environmental fragility. [note: Despite what would seem to be the foundational status of environmental law on Nantucket, I have been unable to find any sustained scholarly analysis of the topic.] The consequences of human and natural pressure on the earth, now thought of as mainly occurring over vast stretches of time, seemed telescoped in Nantucket’s natural history. Its native tribes had so few competitors to their hunting, fishing, and environmental activities that Nantucket’s original jack pine and spruce forests were quickly decimated, its codfish supply dramatically reduced, and its wild animal population, never vast, adversely affected by the domestic animals brought by the English, all in a century or two. The island’s constant exposure to the Atlantic ocean, coupled with climate change, resulted in ponds disappearing, bays changing course, and cliffside areas becoming flat beaches in the lifetimes of individual inhabitants. Erosion of the Nantucket shoreline, because the eroding force is the huge, volatile, and seemingly whimsical North Atlantic, has been constant and at times dramatic. The moist soil that spawned cranberry bogs on the island alternately dried up or was flooded over decades, not eons. Ancient places of spiritual significance, or hills with breathtaking prospects, disappeared over time as the topography of the island appeared to constantly change. Today homes and paths on seaside cliffs are in danger of falling into the ocean; there are numerous natural preserves being safeguarded from human invasion; and the areas where aspiring non-resident owners can buy property are shrinking. And in the winter of 2014-15 islanders received a possible vision of the future: a massive blast of winter air and violent ocean conditions that destroyed some beaches on the island’s north shore.

So the interaction of law with the environment is now the best way of rendering what law on Nantucket now is. That is not to say that most lawyers on Nantucket gravitate to environmental work, or even that much of the environmental law and policy affecting residents is actually generated on the island. It is to say something different: that the place which Nantucket is – an island with a unique topography, paleontology, archaeology, and social and economic history – is now a place where law is all about the environment. Nantucket is a case study, writ small, of humans’ ability to coexist with and to profit from, but also to destroy and to be threatened by, the natural world. It is a place that cries out for law, and at the same time a place that illustrates the limits of law. Small wonder that people write about it.

Public ownership of water

Yesterday's "This Day in Water History" had the following historical editorial, including not only the record of enforcement action for exceeding a water allocation but also some historical justification for public control and ownership of water resources:

June 14, 1919: Municpal Journal and Public Works editorial. Public Control of Water. “Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it.

The right of state or federal government to guard the quality of river waters has been recognized and become familiar, and western states have long controlled the amount that could be withdrawn for irrigation; but limiting the amount that cities can use for their public supplies is a novelty. There is every reason, however, why power to limit the amount that can be used should rest in a central authority and be exercised on occasion. No one city has a right to monopolize a water supply because it “saw it first.” The water flowing in the rivers of a country comprises the run-off from every square foot of land in that country; and as the entire area yielded it, the entire area has a right in it. Moreover, to permit one or a few cities to monopolize all the water available in a state would be fatal to the growth in population and industrial development of the state outside of such cities.

The New Jersey plan seems to be a rational one and one that all states must adopt in some form, sooner or later; and the sooner, the less will be the confusion and individual hardship and the greater the benefit resulting therefrom.”

Rockaway River (Capture the Moment)

Scalia's shadow

James May recently posted "Environmental Law Jurisprudence and Associate Justice Antonin Scalia's Legacy". The abstract:

Associate Justice Antonin Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of administrative law shaped — sometimes single-handedly — a multitude of areas that serve as stock-and-trade of environmental, energy, and natural resources lawyering across the nation. This article focuses on standing, takings, and deference to environmental agency rulemaking.

Digital resources on the commons

"General map which shows the status of the mother river Queiles from the Kingdom of Aragon until it enters the terms of Tudela, the dams, main ditches, Bracers highest grade, which includes the villages with their jurisdictions and roads", drawn March 15, 1792 by Fernando Martínez Corcín. Source: Archivo general de Navarra, Cartografia, signature 146.
(from the ICA page on the Albalá de Tudela)

Rechtsgeschiedenis Blog recently covered digital resources on commons institutions, highlighting the website of Institutions for Collective Action, the Digital Resources on the Commons page of the International Association for the Study of the Commons, and Indiana University's Digital Library of the Commons. There's a tremendous amount of historical material, both primary and secondary, available through these sites.

Like Otto at RB, I'm particularly interested in the water institutions. Institutions for Collective Actions's portal has case studies for 5 Dutch and 3 Spanish waterboards, with a tremendous amount of information on the historic legal institutions governing the management of water in these areas. For instance, here's an excerpt from a description of how the waters of the River Queiles around Tudela, in Navarre (in the north of today's Spain) were governed under a series of ordinances going back to 1220 (a hundred years after the city's Muslim rulers were ejected, but obviously showing the continued influence of their rule):

The ownership of the water of the river Queiles was divided into monthly shifts between the communities that were entitled to irrigation. The first description of this system is to be found in the ordinances of Tudela of 1220. Each month was divided into three periods of different lengths: the almoceda, the alhema. and the entremés. The almoceda began at sunrise on the 22nd of each month and ended on the 26th, lasting four days and nights. The alhema began at sunrise on the 26th and was of variable duration, depending on the location and the time of year: on the right bank, it lasted five days in ten of the twelve months of the year and four days in April and May. From 1376 onwards, on the left bank the alhema lasted for eight days and nights, except in April and May, when its duration was reduced to seven days. The remainder, between the end of the alhema and the start of the almoceda was called entremés.

ELI interviews of environmental law pioneers

The Environmental Law Institute (where years ago I spent a great summer internship as a law student) recently uploaded interviews with 24 people involved in creating the legal framework for modern environmental law in the US, along with short biographies of the interviewees. Scott Fulton, ELI's President, explains:

Nearly 50 years ago, thousands of Americans rallied in the spring of 1970 to celebrate the first Earth Day, an event that marked the beginning of the modern environmental movement. As we approach the 50-year milestone, the Environmental Law Institute has interviewed and recorded the stories of 24 of the men and women who inspired, created, and implemented U.S. framework laws to protect public health and the environment. We asked them why they chose to work on environmental problems and what caused the rise in public concern and support for new environmental laws in the early days. We learned how sweeping new laws like the Clean Air Act and the Clean Water Act came to be created and carried out by able leaders from both political parties, what innovations in those laws made environmental law work well, and where they fell short of expectations.

[Sorry I've been lax in blogging lately. As always, I'm happy for others to pitch in with posts!]