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. 

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Like the understanding of what constitutes a “beneficial use” of water in western water law, the Newlands Act reified particular understandings of the value of the natural world. Those understandings are demonstrated by the name of the act itself—the Reclamation Act. Whatever the conditions of land prior to human intervention, or whatever other non-human purposes it might serve, the Reclamation Act is a collective statement that land’s purpose is to serve human needs.

When Mormon settlers first arrived in the Henrys Fork country, the legal landscape that already existed demonstrated that the purpose of water was to serve human needs, whatever the potential consequences to the natural systems that previously relied on streams as such. And that legal landscape was reinforced over the passing decades as increased federal funding and development further modified natural water systems. These broader cultural statements about the value of water would have been an omnipresent influence on the developing environmental ethic of Henrys Fork Mormons.

For more on Mormons and water law, see here.