Sunday, April 23, 2017

Offshoring environmental law

The latest issue of Environmental History just arrived, leading with an environmental-legal history article, M.X. Mitchell's "Offshoring American Environmental Law: Land, Culture, and Marshall Islanders’ Struggles for Self-Determination During the 1970s". The abstract:
This article explores the impact of environmental law in US-controlled Micronesia. Historians have suggested that US environmental legislation and legal activism during the 1960s and 1970s often overlooked issues of environmental racism and injustice. This article establishes the importance of these emerging environmental laws for Marshall Islanders living under American rule and subjected to the harms of nuclear weapons testing. In 1972 the displaced people of Enewetak Atoll—a former nuclear test site—sued the United States hoping to stop a new program of conventional weapons testing on their badly contaminated ancestral atoll. The capacious concept of the environment used in the National Environmental Policy Act of 1969 and the statute’s ambiguous territorial reach offered islanders important new opportunities to articulate their environmental values and to further their struggles for self-determination over ancestral lands and waters. This article argues that environmental law transcended the artificial territorial boundaries between the United States and its Pacific dependencies, opening up an important new venue of negotiation and conflict over the scope and environmental footprint of US offshore power.
Test of hydrogen bomb at Enewetak, 1952

Friday, April 21, 2017

Parks and Jim Crow

H-SHGAPE recently published a review by Nancy Murray of William O'Brien's Landscapes of Exclusion: State Parks and Jim Crow in the American South (U. Mass. Press, 2015). Murray writes:

Advocates for wilderness recreation viewed national parks as a means to prevent black criminality. As early as the 1920s, officials argued that recreational areas and parks for African Americans would help to address stereotypical problems of crime and juvenile delinquency. In October 1925, while introducing a speaker at the Twelfth Recreation Congress in Asheville, North Carolina, Chairman Robert Lassiter stated that, “with proper attention to recreational facilities, they [African Americans] will make good citizens. Improper attention to that, and neglect and abuse of it, will make a criminal population” (p. 34). These assumptions about black criminality knew no color line. The following year, Ernest Attwell, director of the Parks and Recreation Association (PRA) Bureau of Colored Work and a Tuskegee Institute graduate, reiterated Lassiter’s views.
O’Brien’s book spans a period of time beginning with the origins of state park development in the 1930s to the turbulent civil rights era in the 1960s and relates how the development of state parks reflected the political and racial conflicts of these decades. Throughout, Landscapes of Exclusion emphasizes how local, state, and federal agencies adhered to what was called “customary” practices to justify using public funds to build and maintain segregated state parks. By the 1930s and 1940s, even as state park officials acknowledged African Americans’ need for state parks, Jim Crow laws and the hostility of white residents meant that most southern states refused to provide them.
After World War II, in the face of mounting challenges to segregation, southern states proposed a more expansive network of segregated parks for African Americans and the leasing of whites-only parks to private entities in an attempt to prevent integration. Despite these attempts to preserve Jim Crow, civil rights activists nonetheless persisted. In 1951, four African American beachgoers were denied entry into Seashore State Park on Cape Henry in Virginia. When attorneys from the National Association for the Advancement of Colored People (NAACP) filed a lawsuit, the Virginia Department of Conservation offered to build a park for African Americans near Seashore State Park with similar amenities. When the NAACP rejected this offer, they filed suit in Tate v. Department of Conservation.   

Thursday, April 20, 2017

Yet more forest law

The always vigilant Rechtsgeschiedenis Blog recently posted on the Oxford Libguide on English legal history, noting that it surprisingly has a prominent section on Forest Law. The guide explains the subject:
Generally used to designate the legal regime following the Norman conquest (or at least from temp Henry I 1100): "... the subjection of ... vast tracts of forest land to an alien and oppressive "forest law" protecting the royal hunt" ...[ Baker, Introduction to English Legal History (4th edn 2002), 12[
It raised considerable problems of rights of ownership: for example, it was possible to be the legal owner of land within the designated area of a forest, and yet not be able to "harvest" its produce, either by hunting wild game or felling timber.
Already such a source of grievance to be the subject of clauses in the first attempt to limit the royal power of King John, by 1217 had become the subject of a separate Charter (of the Forest). The arrival of this shorter charter was what lead to the Magna Carta being so called.
The forest law was maintained by specific officers (such as wardens, verderers, and foresters) and with two principal courts hearing charges of breach of the laws, the courts of attachment and the forest eyres.

Among the online resources noted by the guide are John Manwood's [apparently his real name] 1598 Treatise and Discourse on the Lawes of the Forest [the 1717 edition is here], Jane Winters's essay on Forest Law, and the above image of the 1225 Forest Charter granted by Henry III, one of three surviving originals.

For more on British forest law, see here.

Wednesday, April 19, 2017

Masters/Doctoral/Postdoctoral fellowship: Water Law in Mandate Palestine

Please pass this on to anyone who might be interested:
This call is for a single one-year fellowship (2017-2018) for a graduate student or postdoctoral fellow wishing to work on the history of water law in Israel/Palestine or a related topic. The fellowship is part of the Israel Science Foundation-funded research project headed by Dr. David Schorr (Tel Aviv University Faculty of  Law): "Private and Public Water Rights in Mandate Palestine and Early Israel".
Eligible candidates will be one of the following:
  • an applicant for an Ll.M. or Ph.D. degree TAU Law's Zvi Meitar Center for Advanced Legal Studies (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program);
  • a student currently studying for one of the above degrees;
  • a candidate for a research degree in another university or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;
  • recent recipients of a doctoral degree (not from TAU) wishing to conduct post-doctoral research at TAU Law.
The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds. TAU students will also receive a tuition waiver. No funds will be provided for travel or lodging, though administrative assistance may be provided for both. The fellow may re-apply for funding in subsequent years, university rules permitting.
The fellow will be expected to be in residence in the Tel Aviv area and participate in weekly workshops and seminars at TAU.
Interested individuals should send the following documents (in English or Hebrew) to by 15 May 2017:
  • cover letter describing research agenda and its relevance to Dr. Schorr's research project
  • c.v.
  • transcript of grades from last degree
  • 2 letters of recommendation sent directly to
  • writing sample
Notification of the fellowship award will be made quickly.
Please address any inquiries to

Tuesday, April 18, 2017

More on the Antiquities Act

Bears Ears National Monument designated by President Obama
Following up Sunday's post on the Antiquities Act, I'd like to note an interesting post on the topic by Nick Bryner at Legal Planet. There's a lot of straght legal analysis, but a large dose of legal history as well. Bryner takes on an AEI "white paper" written by John Yoo and Todd Gaziano:
First, Yoo and Gaziano seek to re-frame the history and past judicial decisions on the Antiquities Act in order to make an argument about the purpose of the Act. The authors raise the argument that the Act has been “abused” for the purpose of effectively creating new, large national parks, and that the large size of some monuments designated throughout the Act’s history runs counter to the statute. Their claim purports to be rooted in textual analysis of the Act, but relies on an assumption due to the context of “earlier and contemporaneous bills” that would have “limited monument designation to 320 or 640 acres (page 3). The Act instead provides that monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Yoo and Gaziano posit that the lack of a size limit “provide[s] flexibility for special situations and not to allow a million-acre designation” (page 3). Contemporaneous history, however, also points to officials in the Interior Department who favored broad empowerment of the President to set aside public lands, and suggests that these officials had a hand in adding the Act’s more expansive language of “other objects of historic or scientific interest” to meet this goal. No court has ever invalidated a presidential designation of a national monument — from the Grand Canyon under Teddy Roosevelt (its status as a national monument, prior to conversion to a national park, was upheld by the Supreme Court against mining claims in Cameron v. United States), to the Giant Sequoia NM under Clinton (upheld by the DC Circuit in Tulare County v. Bush).
The purpose and context of the Antiquities Act, including congressional action and inaction over the past century, suggest that a one-way ratchet — presidential designation, with significant reduction or revocation only by Congress — is exactly what was intended. Congress was concerned that historical, archaeological, and natural or scenic resources could be damaged or lost, and devised a delegation to the President to act quickly when needed to preserve those resources, leaving Congress the opportunity to deliberate on a longer-term solution for the area in question, if it so decided. On 10 occasions, Congress has reversed those presidential decisions; far more often, it has concurred or built upon the President’s actions by expanding monuments or re-defining them as national parks. This is how the process is supposed to work. Antiquities Act designations do not, as critics say, cut off debate or circumvent the democratic process. They simply alter the status quo in favor of conservation — a precautionary approach. If Congress studies the matter and decides to change or abolish the monument to allow for different uses of the land, it has the power to do so through the usual legislative process; until that action is taken, objects of historic or scientific interest are protected.

Sunday, April 16, 2017

The Antiquities Act

Grand Canyon National Park
Current politics continues to provoke interest in the history of environmental law. John Leshy's and Mark Squillace's recent column in the New York Times on "The Endangered Antiquities Act" notes:
The act has been used more than 150 times, by nearly every president, Republican and Democrat, from Theodore Roosevelt on, to protect hundreds of millions of acres for the inspiration and enjoyment of present and future generations. Five of the nation’s 10 most-visited national parks — Grand Canyon, Zion, Olympic, Teton and Acadia, each attracting millions of people a year — were first protected by presidents using the Antiquities Act.


Some dislike the law because presidents have tended to use it late in their terms to sidestep opposition to their designations. But would anyone today seriously question the wisdom of Theodore Roosevelt’s using the act to protect what is today the core of Olympic National Park in Washington two days before he stepped down in 1909? Or Herbert Hoover’s safeguarding what are now three national parks, including Death Valley in California (1.3 million visitors last year), in his last three weeks in office in 1933? Or Dwight D. Eisenhower’s setting aside what is now the Chesapeake and Ohio Canal National Historical Park (five million visitors last year) two days before John F. Kennedy’s inauguration in 1961?

Because these presidential actions change the status quo and prevent development, they have sometimes incited local opposition. But over time, the growing popularity of these places often led Congress to recast them as full-fledged national parks.

That’s what happened after Franklin D. Roosevelt established the Jackson Hole National Monument in 1943 on land fronting the magnificent Teton mountain range in Wyoming. Outrage ensued. Senator Edward Robertson of Wyoming called the president’s action a “foul, sneaking Pearl Harbor blow,” and locals led a cattle drive across the new monument in protest. But by 1950, the monument’s benefits to local life and the economy persuaded Congress to incorporate it into Grand Teton National Park, and President Harry S. Truman agreed. In 1967, Cliff Hansen, a leader of the cattle drive protest who became a United States senator, acknowledged he had been wrong to oppose Roosevelt’s action. He called the expanded Teton Park one of his state’s “great assets.”
More on the current debate over the law soon.

Sunday, April 9, 2017

Water pollution lawsuits

This Day in Water History recently reproduced a 1916 article from the Municipal Journal:
Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.
Michael McGuire comments:
The typhoid fever epidemic in Milwaukee was caused by a city employee turning off the chlorine disinfection system for about 10 hours. The epidemic resulted in 513 cases and 59 deaths from typhoid fever. As filtration and chlorination became more widely installed to protect water supplies, it became harder for cities to claim that contaminated water supplies were not responsible for typhoid fever deaths. The combination of engineers wanting to do the right thing and lawsuits resulted in an accelerated introduction of the new technologies.

Monday, April 3, 2017

Private property in riparian rights systems

The issue of private property in water is a well-studied one, but usually in the context of systems based on appropriative rights. This Day in Water History reproduces a 1915 article from the Municipal Journal (I'm assuming it's not an April Fools joke) that shows that riparian-rights systems, usually thought of as common-property regimes, could be raise the same privatization-related issues typically identified with appropriative systems - overuse, concentration, and demands for public control:
Boston, Mass.-That the state’s water resources are being gobbled up by private interests and that unless some change of policy is immediately instituted Massachusetts will have to face a water famine is brought to the attention of the legislature in a report on the conservation and utilization of waters by the state board of harbor and land commissioners. The amount of water power used by manufacturers has increased enormously in the last few years. For instance, proprietors of Locks and Canals in the city of Lowell consumed in 1912 about 11,620 horsepower, developed from the Merrimac river, according to statistics of the United States Bureau of Corporations. A survey in 1915 by the harbor and land commissions shows that these same Locks and Canals now use 29,911 horsepower. The water used and wasted by municipalities is also mentioned in the report. The commission urges that a definite plan be laid out by the state for the control and conservation of the water resources. The Merrimac river is capable of further development, according to United States Engineer C. C. Covert of the Geological Survey, who is quoted as saying that, although the most favorable opportunities for storage on the Merrimac are being utilized, there are still many unutilized reservoir sites available. The commission on harbors and public lands holds that unless the state within a reasonably short time asserts a definite policy of control, the waters in the rivers and natural streams, which belong to the people of the whole state will be devoted entirely to private uses. In contrast to the situation in Maine, New Hampshire, Vermont, New York and the province of Ontario, where a conservation program is now under way, nothing at all has been done in Massachusetts. The control which exists of the water resources is divided among four or five different bodies, no one of which has complete authority. In the year 1912 the United States Bureau of Corporations made a tabulation which showed that 130,620 horsepower was owned by the larger companies in Massachusetts. The harbor and land commissions, canvassing the same people, have discovered that within the three years the total horsepower developed has increased to 264,152, Massachusetts manufacturers are now paying nearly $26,000,000 a year for the purchase of fuel for power purposes. Intelligent plans to avoid freshet damages and to store water for irrigation are also urged.

Friday, March 31, 2017

The Torrey Canyon spill

It's 50 years since the Torrey Canyon oil spill off the coast of Cornwall, one of the worst oil spills ever. The disaster led to a series of dramas, not only oil slicks and dead wildlife, but (partly ineffective) bombings of the wreck by the British military, and the following legal drama (as reported by Wikipedia):
Claims were made by the British and French governments against the owners of the vessel and the subsequent settlement was the largest ever in marine history for an oil claim. The British government was able to serve its writ against the owners only by arresting the Torrey Canyon's sister ship, the Lake Palourde, when she put in for provisions at Singapore, four months after the oil spill. A young British lawyer, Anthony O'Connor, from a Singaporean law firm, Drew & Napier, was deputised to arrest the ship on behalf of the British government by attaching a writ to its mast. O'Connor was able to board the ship and serve the writ as the ship's crew thought he was a whisky salesman. The French government, alerted to the Lake Palourde's presence, pursued the ship with motor boats, but crew were unable to board and serve their writ.
More importantly, the disaster led to a series of changes in international law, as told by the International Maritime Organization, including amendment of the International Convention for the Prevention of Pollution of the Sea by Oil and adoption of the International Convention for the Prevention of Pollution from Ships.

The spill also led to early legal scholarship on environmental law, including Albert Utton's 1968 "Protective Measures and the 'Torrey Canyon'" and Colorado water law scholar Ved Nanda's "The Torrey Canyon Disaster: Some Legal Aspects".

Tuesday, March 21, 2017

Environmental law and the 1970s

Keith Hirokawa recently posted "Contextualizing the Roots of Environmental Law". The abstract:
This review of Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–1970 (2009), considers an attempt to describe the law’s “environmental history” through a narrative account of incrementalism. The author’s deep research and skillful storytelling takes us into the struggles of early environmental advocates, who yearned to become citizens of a broader biotic community and catalyzed tensions between nature and politics and property. The author capitalizes on the co-dependencies of human and environmental sovereignty and reveals the continuous interplay of human action, nature, and legal evolution. Despite making tremendous discoveries about the emergence of environmental law, the book makes a further claim. The author suggests that most commentators erroneously focus on the environmental decade of the 1970s, instead of the roots that took hold and flourished in the post war period. In so doing, the author argues, most commentators fail to grasp the political, economic and environmental commitments made prior to the 1970s. This essay argues that although environmental law has always appeared at the crossroads of environmental challenge, economic needs, property, identity, and community, we cannot avoid the environmental law of the 1970s, when the convergence of disciplines informed our regulatory approach and when the immediate need for environmental quality became part of the law.

Monday, March 20, 2017

Gorsuch and Hamburger

A few months ago we noted some of the environmental dimensions of Philip Hamburger's revisionist account of the history of administrative law. Now Eric Posner points out some contemporary relevance of Hamburger's controversial views (thanks to Legal History Blog for flagging the post, and to Eric for approving the re-post):
Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?
Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.
I do not think that this vision is acceptable to the public, or really anyone, not even business, which says that it opposes regulation but in fact depends on it more often than not. But his view is an appealing fantasy, and it has excited the conservative legal community. It’s much easier to say “it’s all unconstitutional” than to explain why this regulation or that one is unwise or illegal.
In rereading Hamburger, I am struck by three themes, which resonate with our political times.

Friday, March 17, 2017

Fisheries litigation

Robin Kundis Craig and Catherine Danley recently posted "Federal Fisheries Management: A Quantitative Assessment of Federal Fisheries Litigation Since 1976". The abstract:
When Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act in 1976, it intended the Act to operate largely without the courts. Indeed, since the statute’s enactment, the National Oceanic and Atmospheric Administration (NOAA) and the regional Fisheries Management Councils have published over 1700 regulatory actions in the Federal Register, but cases challenging fisheries management have been relatively limited. 
Given how much fisheries management “flies under the courts’ radar,” so to speak, it is worth asking what kinds of cases do end up in the courts. This article presents an initial quantitative assessment of federal fisheries litigation since 1976 to begin to assess the role of the courts in federal fisheries management. It concludes first that the 1996 and 2006 amendments to the Magnuson-Stevens Act, each of which added enforceable ecological requirements, both increased the amount of environmentally-minded litigation brought under that statute. Nevertheless, contrary to many perceptions, fishermen always have been the Act’s primary litigants, arguably confounding Congress’s original intent for fisheries management.

Monday, March 13, 2017

Water law and imperial control

Roman Yu. Pochekaev recently posted "'Water Law' as an Instrument of Russian Imperial Policy in the Central Asian Khanates". The abstract:
Water has always been an important resource for Central Asian states and peoples. Different rulers at different times used water, and access to it, as an instrument of political and even military influence. When the Russian Empire expanded into Central Asia, seizing substantial parts of three central Asian khanates (Bukhara, Khiva and Khoqand) and established its own protectorate over these states, its also found that water was one of the most effective means to control the rulers and peoples of Central Asia. The use of water and irrigation policy as an instrument of rule was effectively used by the Russian Empire in its relations with the Central Asian khanates and this has already been the subject of investigation. This paper analyses the legal regulation of water use and the irrigation policy of the Russian Empire in Turkestan in order to influence the Bukharan Emirate and the Khivan Khanate during the epoch of the Russian protectorate (1870s–1910s). The paper demonstrates how the internal “water law” was a starting point in Russian policy towards Bukhara and Khiva, and shows that each subsequent stage was closely connected to the evolution of the “water law” in the Russian Turkestan. The sources are official documents (including legal acts) of the Russian Empire, correspondence of Russian and Central Asian statesmen, memoirs of contemporaries and the notes of Russian visitors to khanates (diplomats, engineers, etc.) who participated in the realization of Russian water policy in Bukhara and Khiva and could estimate its effectiveness.
Irrigation map of Turkestan
(Glavnoe Upravlenie Zemleustroistva i Zemledeliya, Otdel Zemel'nykh Uluchshenii 1914)
For more on natural resources law in imperial Russia see here.

Sunday, March 12, 2017

The law and climate change under Reagan and Bush I

President Bush signs the UN Framework Convention on Climate Change in Rio, June 1992
(Source: UN)
It may seem like ancient history today, but a mere twenty-five years ago US Republicans supported climate change legislation and treaties, as Greg Dotson reminds us in a post at The Conversation:
In 1987, President Reagan signed the Global Climate Protection Act into law, giving the EPA the lead agency role in developing and proposing a “coordinated national policy on global climate change.”
In 1992, President George H. W. Bush negotiated the landmark climate treaty the United Nations Framework Convention on Climate Change. Upon reaching the agreement, Bush EPA Administrator Bill Reilly wrote that a number of EPA programs would play “a key role in enabling the United States to meet the goal of the Climate Change Convention: to cut greenhouse gas emissions using a benchmark of 1990 levels.” For example, EPA’s Green Light Program which Reilly had initiated in 1991 gave birth to the Energy Star program in 1992, a voluntary program that helps businesses and individuals protect the climate through energy efficiency.
When the U.S. Senate ratified the Framework Convention in 1992, Senator Mitch McConnell said it was “a fine agreement.” The EPA assumed the duty of preparing the official U.S. Inventory of Greenhouse Gas Emissions to comply with the nation’s commitments under the treaty.
More on conservatives and environmental regulation here and here.

Thursday, March 9, 2017

Law as constitutive of environmental attitudes

Henrys Fork, Idaho
Jerrold Long recently posted "The Origins of a Rebellion: Religion, Land, and a Western Environmental Ethic". The abstract:
This article examines an apparent irony in the environmental ethic of the contemporary American West. Much of the Interior West is dominated by a particular culture that is the product of Mormon settlement in the Salt Lake Valley and subsequent expansion throughout the region. The teachings of early Mormon leaders contained significant threads of what today would be recognized as environmentalism. Despite these teachings, and despite Mormons’ famously strict adherence to other theological tenets, the environmental ethic of the contemporary West is often perceived as anti-environment. Why would this culture, which holds so fast to its other religious teachings — including those teachings that for a time had significant and negative political, legal, and economic effects — reject this aspect of religious doctrine? Using the Mormon experience as a case study, this article argues that the contemporary West’s conservative environmental ethic is a tapestry woven from the interrelationships of legal regimes found and developed during western settlement, the cultural origins and destinations of the settlers, and the physical landscape itself. It is both what settlers found and developed upon arriving in the interior West that led to the region’s contemporary environmental conservatism.
In other words, Long is arguing that environmental law shaped environmental attitudes (notes omitted):
We tend to think of law as following culture (or ethics, or morals) both temporally and substantively. But the relationship is instead recursive, with both law and culture emerging from and giving rise to the other. As we assess the validity of a particular legal landscape, we compare it to shared meanings to determine if it is both valuable and legitimate. At the same time, we assess the value and legitimacy of our shared meanings by comparing them to what the law says is appropriate.
So while the Mormon settlers.., arrived, from all over the world, with cultural meanings in tow, those meanings were both confirmed and influenced by the legal landscape the settlers encountered upon arriving in the [region].
With regard to attitudes water among Mormon settlers in Idaho, Long argues:
When the Mormon (and other) agricultural settlers began arriving in the Henrys Fork region at the end of the 19th Century, they arrived in a place that already had a specific legal imprint placed upon it—both formally and informally. Whatever their origins, and many were only recent immigrants to the United States, their relationship with this new western landscape was already structured in a particular way. For several decades by that point, the custom, and then formal law, of the region was one that preferred the extraction or appropriation of water from natural water courses for its use elsewhere. Although all uses of water were limited to the extent they could be applied to a beneficial use, the beneficial uses of water were themselves constrained. In the Idaho Constitution, a hierarchy of beneficial uses was formalized, beginning with domestic uses, then agriculture followed by manufacturing, except in mining districts where mining superseded all but domestic uses. 

Tuesday, March 7, 2017

Putting the Trump environmental transition in perspective

William Ruckelshaus, the first time around
Following today's post by Craig Oren on precedents from the Reagan era for Trump's plans to roll back environmental regulation (on which see also William Ruckelshaus's piece from yesterday's NY Times), I'm also re-posting an interesting call originally posted on H-Environment:
On behalf of a new group of scholars, the Environmental Data and Governance Initiative, I'd like to invite the participation of environmental historians in a a project we're undertaking.   As part of a report we are preparing on the first 100 days of the Trump Administration, we're hoping to offer some historical and comparative perspective on what will have transpired.  I'd welcome your help, first of all, with a review of the relevant historical literature.  Either as "reply" to this post or through email, could you please send citations of insightful articles, book chapters or book--with a summary of contents and argument--on the following topics?
1. Accounts and analysis of the environmental dimensions of the U.S. presidential transition to Ronald Reagan
2. Accounts and analysis of the environmental dimensions of the Canadian transition to Stephen Harper
3. Nominations, with a citation, of any other environmental transitions of a federal government that you think pertinent
All replies and a summary are going to be posted in the new H-Commons list H-Envirohealth.   If you prefer emailing, please send to and/or   
If you'd also like to get further involved with our group, please let us know.  Plenty of good work to do, and we welcome new energy and ideas.
Chris Sellers for the Environmental Data and Governance Initiative

The Trump environmental transition

After a pleasant interlude in medieval English forests, we return to recent history with a recent post by Craig Oren on RegBlog. After laying out some of the possible deregulatory moves we will see from the Trump administration, Oren takes us back in time:
We must remember 1981, when the Reagan Administration came into power. Its choice for EPA administrator was Anne Gorsuch [Neil Gorsuch's mother-DS], who had little experience in environmental matters. Lobbyists seeking deregulation initially had much influence on the agency. During her short-lived tenure, a draft emerged of proposed amendments that would have eviscerated the Clean Air Act, much to the horror of environmental groups. Gorsuch also repeatedly weakened EPA’s enforcement office. Gorsuch warred with the agency’s career staff: a number of high-level executives were transferred—and some lost their jobs altogether—as punishment for not being sufficiently compliant with the Administration’s priorities.
Gorsuch at her farewell news conference
Capitol Hill looked unpromising, too, during the Reagan years. Then-Representative John Dingell (D-Mich.)—a firm environmentalist, but also someone who was concerned with the interests of auto companies, which employed many of the constituents in his Detroit congressional district—joined with industry and Republicans to put together a package of weakening amendments to the Clean Air Act, including a rollback of auto-emission standards l. And a so-called regulatory reform bill, designed to hamstring agencies from protecting public health and the environment, seemed in 1982 to have a considerable chance for some time of being enacted.

Sunday, March 5, 2017

And yet more forest law

While we're on the topic, I missed this when it was posted a couple of years ago: Nicholas Robinson's "The Charter of the Forest: Evolving Human Rights in Nature" (in Magna Carta and the Rule of Law (Daniel Barstow Magraw et al., eds., ABA, 2014). The abstract:
Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Wednesday, March 1, 2017

More forest law

Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):
The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.
William the Conqueror, the Bayeux Tapestry

Tuesday, February 28, 2017

Forest law

from Livre de la Chasse
Moving from forests in Mexico to English forests, the latest issue of the William & Mary Bill of Rights Journal, dedicated to Magna Carta, has a couple of articles on medieval forest law in England (thanks to Legal History Blog for noting it). The first is Ryan Rowberry's "Forest Eyre Justices in the Reign of Henry III (1216–1272)" (for the second, see here). Rowberry notes that scholars have estimated that forest jurisdictions covered nearly one-quarter of England by the thirteenth century, possibly more.

 As there's a lot of interesting stuff here, I'll just quote a bit (omitting footnotes, text in brackets is my own). First of all, to clarify what a medieval "forest" was:
‘Forest’ in medieval England denoted a defined area of unenclosed land within which wild game, principally deer, along with wide swathes of its habitat were protected by forest laws for the benefit of the king. Medieval forests, however, could include “not only woodland, but also heath, pasture, meadow, and arable land, and even hamlets, villages, and townships.” Importantly, forest jurisdictions in England unlike those in Normandy could, and often did, extend outside the king’s own demesne land (the crown’s landed estate) onto privately held lands, acting as a type of economically restrictive land-use overlay on areas that remained subject to the common law as well.

Friday, February 24, 2017

Forests and revolution in Mexico

After recent discussions of forests and revolution in France, we now turn to a similar topic in Mexico. H-LatAm recently posted Timothy Lorek's review of Christopher Boyer's Political Landscapes: Forests, Conservation, and Community in Mexico (Duke UP, 2015). Some highlights:
Boyer begins in the 1880s and follows the thirty-year reign of Porfirio Díaz and his embrace of foreign capital investment and scientific expertise, exercised by the regime’s cadre of científicos. The rapid acceleration of land titling (the so-called disentailment of communally owned property) and privatization of terrenos baldíos (unoccupied public land) and resources spurred the growth of commercial logging to meet the demands of the expanding newsprint industry and railroads. Observing the growing corporate commodification of timber resources, Boyer shows how members of the intellectual elite organized for conservation of the woodlands through a “regime of scientific management,” premised on similar initiatives in Europe and the United States (p. 30). Chief among these early conservationists was Miguel Ángel de Quevedo, whose long career in public policy withstood political transitions and revolution. Quevedo and the early forest service viewed conservation as a scientific and rational practice best orchestrated by urban Mexico City elites rather than the inhabitants of the woodlands themselves. What little consideration his urban foresters did give to rural peoples such as the Rarámuri of Chihuahua or the Purépecha of Michoacán, Boyer argues, was to criticize them as backwards, wasteful, and an impediment to rational management.
Chapters 2 and 3 chart the rise of “revolutionary forestry.” A rich historiography exists on the Mexican Revolution (1910-17) and on the subsequent agrarian reform which continued until 1992. Article 27 of the constitution of 1917 cleared a path for two legal channels for securing land rights: the restitution of communal land (restauración) or the granting of parcels (ejidos) of public land for usufruct use (dotación). And yet, Boyer points out, few scholars have noted Article 27’s significance in mandating the state’s right to manage natural resources on behalf of the nation. This charge led to the postrevolutionary state’s partnership with Miguel Ángel de Quevedo and his determined application of rational conservation in forestry. Yet Quevedo and other conservationists’ preferences for a state-regulated management bureaucracy complicated indigenous land rights supposedly protected under the postrevolutionary state’s social agenda. For example, the Forest Code of 1926 required ejido and native communities to form producers' cooperatives whose timber harvests were guided by scientific management plans approved by the new forest service. Other elements of the code, such as the ban on hatchets for felling, had the arguably unintentional effect of restricting native access to cutting timber in favor of commercial operations. As Boyer shows, the new bureaucratic hurdles presented challenges for ejidatarios and native villagers in Chihuahua and Michoacán, who struggled to assert their rights over unscrupulous outsiders and, when that failed, resorted to clandestine logging and the black market. 

Thursday, February 23, 2017

The conservative as environmentalist

Though conservatism is today associated with anti-environmentalism (a trend with an interesting history); see also here and here), a growing body of work is digging into conservative and religious roots of American environmentalism. Last year we noted Dan Farber's post on American conservatism and environmentalism at Legal Planet; now comes the article: "The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century" (thanks to Dan Ernst at Legal History Blog for noting it). The abstract:
Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax.
This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil fuel industry. These forces may be abating, opening the door for a more vigorous debate about environmental policy within the conservative movement and in the broader public arena.

Friday, February 10, 2017

Race and public lands

A recent issue of Environment and History has an article connecting issues of conservation and race, Harald Witt's "Indigenous Trees and Forests: Contradictions, Conflict and Conservation in Natal and Zululand (1900–1960)". The abstract:
At the turn of the nineteenth century, it was estimated that nine-tenths of the identified forests in Natal had been permanently alienated from the Crown through their incorporation into private lands and Native Trust Lands. The entrenchment of the political power of white land-owners in the twentieth century ensured that official attempts at restraining private land-owners from destroying indigenous forests on their lands were doomed to fail. Trust forests, as quasi state forests, were however, more accessible to Forestry officials, who remained convinced that the management and ultimately preservation of these forests could best be controlled and managed by themselves. This article examines the manner in which the conservation and administrative control of the various forests on Trust lands became the subject of dispute between various organs of the state in the first half of the twentieth century. This contestation was characterised, on one level, by a general shift from a conservationist and utilitarian approach in regard to the management of indigenous forests to one that was far more preservationist in definition while, at the same time, illustrating fierce administrative tensions between a relatively compassionate Department of Native Affairs and a Department of Forestry that subscribed to a more racialised agenda.
 Coastal Forest Dunes at Sodwana, Zululand (Carlos de Resende)

Wednesday, February 8, 2017

Equal access to justice or to obstruction?

As environmentalists deliberate the extent to which the courts can be used to stymie the anti-environmental agenda of the current American regime, the latest issue of Environmental History has a book review by Steve Vanderheiden of Lowell Baier's Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America's Lands, Endangered Species, and Critical Habitats (Rowman & Littlefield, 2016). Baier's book apparently makes a strong argument, and Baier is appreciative but critical:
Adopted in what Lowell E. Baier describes as “the earliest legislative manifestation and harbinger” of the Reagan Revolution (p. 79), the 1980 Equal Access to Justice Act (EAJA) authorizes reimbursement of legal fees for prevailing parties suing the government. While originally designed to serve a deregulatory agenda that would limit state power over business and persons, the EAJA has frequently come to support environmental groups pressing the federal government through the courts for greater environmental regulation, rather than less. According to Baier... the litigiousness of these groups has paralyzed the administrative state and eroded its capacity to manage the nation’s resources, to the detriment of the environment that such groups set out to protect.
Baier, as a lawyer and historian, is sharply critical of this policy evolution of the EAJA, through which courts and civil society groups came to play an increasing role in environmental policy, challenging the actions or omissions of resource management agencies. Part narrative history of the development, passage, and later evolution of the act, and part polemic against the US environmental movement and its legal strategy, the book is bound to attract two different sets of readers. Historians and other scholars of US environmental politics will find a scrupulously narrated account of the political milieu from which this legislation emerged, along with its evolution over recent decades, in the book’s first four chapters. Assembled from an impressive array of interview notes and archival texts, these accessible chapters detail the original objectives for and later impacts of this important statute.
More polarizing is the polemic that follows, with Chapters 5 and 6 painting the majority of organized environmental groups with a crude and uncharitable brush, Chapters 7 and 9 launching a relentless series of accusations against environmental litigants and their legal strategies, and Chapter 8 offering an alternative to this kind of adversarial politics in the form of “cooperative conservation,” through which polluting industry and the state are touted as better able to protect the environment in the absence of legal accountability to civil society groups....

Monday, February 6, 2017

Domestic law instead of international agreements?

The latest issue of Water International published an article by Marco Verweij, "The remarkable restoration of the Rhine: plural rationalities in regional water politics". First, the abstract:
The restoration of the Rhine basin is widely viewed as an exemplary case of international water protection. The river’s clean-up has been characterized by a number of puzzling developments. These include chemical companies reducing their toxic effluents by more than legally required, and riparian governments quarrelling internationally over environmental measures that each of them were undertaking domestically. It is argued that the plural rationality (or cultural) theory pioneered by Dame Mary Douglas offers an empirically valid explanation of these remarkable processes.
The article tells an interesting historical story, with implications for current international environmental issues such as climate change. An excerpt (citations omitted):
The efforts to stop the environmental degradation of the Rhine between 1963 and 1986 were paradoxical. The attempts to do so with the help of international agreements were ineffective at best, and counterproductive at worst. Yet, simultaneously, the domestic efforts to clean up the Rhine were quite effective in each riparian country. 

Thursday, February 2, 2017

Environment, history, and the US Supreme Court nomination

All history may be contemporary history, but yesterday's post had present concerns front and center. Continuing the trend, today's post is inspired by the nomination of Neil Gorsuch to the US Supreme Court. Others have attempted to divine how Gorsuch would rule on environmental issues, but here we'll take a historical tack, looking back at some earlier posts dealing with environmental issues in the US Supreme Court. Some of the topics covered:

Wednesday, February 1, 2017

Nature and anti-immigrant politics

With great timing, the latest Environmental History has a review by Sterling Evans of John Hultgren's Border Walls Gone Green: Nature and Anti-immigrant Politics in America (U. Minnesota Press, 2015), reminding us that current events have historical (and environmental) roots. (I note that it's frightening how far the "racial logics" that are "socially acceptable withing mainstream political discourse" (see below) have shifted between the book's publication two years ago and the Trump Era.) Some excerpts:
This highly recommended book focuses on the nature of building US-Mexican border walls, the racism that has accompanied such policies, and the anti-immigration fervor that has followed within some environmental organizations. The term that John Hultgren relies on to discuss this issue is “environmental restrictionism,” and he discusses its efficacy very well in Border Walls Gone Green.
Hultgren, a political scientist, suggests the “central thesis” of the book is that “nature is increasingly being deployed as a form of walling—providing a subtle means of reinforcing ‘territorial’ borders without having to revert to racial and cultural logics that are no longer socially acceptable within mainstream political discourse” (pp. 1–2). That is a meritorious thesis to pursue in this study and one that Hultgren works to prove by the end of the book. “Nature, in this sense,” he posits, “provides a way for immigration restrictionists to expand their alliances beyond the far right while still maintaining the support of nativists,” a scenario that he argues is hardly new with “American greens” (p. 2). For theoretical background he provides some historical context from the anti-immigration stances of members of Earth First!, the Sierra Club, and a variety of environmentalist writers and activists. Thus he unpacks the connections between the “nature” of restrictionists and “narratives of political community” in this “emerging form of territorialization.” In other words, his goal is to shed “light on the discursive and institutional pathways through which nature is subtly woven into exclusionary political projects” (p. 3). In a larger sense, Hultgren’s point is to draw attention to “the complexities of natural-cultural interconnection,” especially how the environmental movement has been guilty of using “nature’s perceived location within progressive politics … to be used for exclusionary purposes by a variety of actors who seek to naturalize their (usually privileged) location within the political community while marginalizing others” (p. 5). 
For more on this issue, see here and here.

Thursday, January 26, 2017

Legal change and geography of the Great Lakes-St. Lawrence system

The Canadian Geographer recently published Jamie Benidickson's "From boundary waters to watersheds: Legal change and the geography of the Great Lakes-St. Lawrence system" (thanks to Canadian Legal History blog for noting it). The abstract:
It is appropriate to recognize an evolving legal and institutional perspective on the Great Lakes-St. Lawrence system (GL-SL) as a means of furthering the understanding that is provided from established cartographic, bio-geological, historic, and cultural perspectives. This paper describes elements of that evolution from a one-dimensional legal conceptualization of the GL-SL as a boundary reflecting sovereign autonomy and state security, through a more complex recognition of the water system involving navigation, fisheries, and water supply, to a more comprehensive acknowledgment of basin- and ecosystem-oriented approaches where land-use activities and influences ranging from groundwater flows through air-borne contamination must be accounted for. The Boundary Waters Treaty of 1909 and the Great Lakes Water Quality Agreement (1972–2012) provide general points of reference.
There's a lot in this article on pollution regulation, fisheries, and more.

Tuesday, January 24, 2017

California, Chile, and water law

Ralco dam & hydroelectric plant, Veoverde
Carl Bauer and Luis Catalán recently posted “Water, law, and development in Chile/California cooperation, 1960s-1970s”. First, the abstract:
During 1963-1978 the governments and the top universities of Chile and California undertook three programs of binational development assistance and cooperation. The programs built on a long historical relationship between the two regions, marked by their striking similarities in physical geography and natural resources, despite being 1000s of miles apart on opposite sides of the Equator. The first program was for technical development assistance to Chile in the framework of the Alliance for Progress, and involved the three governments of Chile, California, and the United States. Water resources and river basin development planning were a primary emphasis, and led to building Chile’s largest dual-purpose reservoir (Colbún). The second program was for graduate-level academic exchange and involved the two leading public university systems, the University of Chile and the University of California. This comprehensive program was funded for more than a decade by the Ford Foundation, with agriculture, natural sciences, and engineering the dominant fields. The third program was a separate effort to reform Chilean legal education, led by Stanford Law School and funded by the Ford Foundation. This Chile Law Program was a leading international example of the “law and development” movement in the 1960s, which overlapped closely with the early years of the “law and society” movement in the U.S. Both university and law school programs ended after the Chilean military coup in 1973. What were the impacts of these programs on water, law, and society in both Chile and California? What lessons can we learn today from those historical experiences? We answer these questions with an historical overview and synthesis of diverse documents and evidence. In focusing on water, law, and society, we aim to contribute to the interdisciplinary synthesis of different fields of development studies.
And from the conclusion:
In terms of water, California’s influence has been noticeable in dams and technology, but not in law and policy....

Friday, January 20, 2017

In memoriam: Wolfgang Burhenne

January 6 saw the passing of Wolfgang Burhenne, a key figure in post-war German and international environmental law, at age 92.

A review by Tracy Mehan in the Environmental Forum earlier this year tells explained that Burhenne spent much of World War II imprisoned by the Nazis for aiding the resistance. Then, after the war:
through an unpaid engagement with a hunting club, he eventually obtained employment with the hunting administration of the Free State of Bavaria. There he became involved in hunting legislation. And so his passion became the preoccupation of his professional life. Hunting shaped his ideas on sustainability, i.e., “use natural resources in a way that allows full recovery.” “Sustainable use is a principle I have always known from hunting,” maintained Burhenne.
Burhenne and his second wife, Françoise, were “directly involved in nearly all major international conventions concerned with conservation over the past 25 years, and the development of the World Conservation Union (IUCN) Environmental Law Center in Bonn,” as described by the United Nations Environment Program when awarding them the UNEP International Environmental Prize in 1991. “No two people have done more to strengthen the position of international and national environmental law as a fundamental element of environmental management,” according to the citation....
Wolfgang Burhenne was a highly successful policy entrepreneur and the node connecting several nongovernmental organizations and foundations, some of which he basically created from scratch. His wife provided the intellectual ballast while he forged the alliances, negotiated the treaties and raised the money. Together they worked on countless drafts and treaties that are the foundation of much of international environmental law, among them the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals, the 1982 UN World Charter of Nature, the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, and the 1992 Convention on Biological Diversity.

Tuesday, January 10, 2017

In search of post-Brexit England

I highly recommend reading a beautiful piece by Helen Macdonald just published in the New York Times Magazine, "In Search of Post-Brexit England, and Swans". The story opens:
In the days after the Brexit vote last year, I became obsessed with an oil painting called “Swan Upping at Cookham” [below, Stanley Spencer, 1915-1919], which portrays a scene from an ancient and colorful English tradition. “Swan Upping” refers to the annual summer voyage of a flotilla of wooden skiffs that sets off from the town of Sunbury-on-Thames on a five-day journey to catch all the swans on the upper reaches of the River Thames. The crews check the parentage of young birds and place a mark on them to claim their ownership: Some belong to the queen, others to the Worshipful Company of Vintners and the Worshipful Company of Dyers, two ancient trade guilds based in the City of London. The painting depicts a traditional stop on the uppers’ trip. Here is the river and the Ferry Inn, wooden punts, moody clouds, women carrying cushions, a fretted iron bridge and a swan bound and hoisted in coils of rope and canvas, white neck craning from a man’s shoulder.

After some interesting background on the painting and on the place of these swans in English national mythology, Macdonald explains more about the legal historical background of the "upping":