Historical analysis in environmental law I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

The commons imaginary

I recently came across what seems to me a really important article, John Wagner's "Water and the Commons Imaginary", published in 2012 in Current Anthropology (along with a series of responses by other social scientists of the commons, including Elinor Ostrom, in what must have been one of her last writings). The abstract really doesn't do justice to the article's central argument, so I'll bring some excerpts here (citations omitted):

The term “commons” has been appropriated over recent decades by individuals, corporations, and interest groups seeking to benefit from the positive emotional responses that the term seems to evoke. In some cases—shopping commons, for instance—use of the term appears to be mainly a marketing strategy, but in other cases the term carries a definite political argument, most typically an argument against commodification, privatization, or enclosure and in favor of egalitarian, grassroots approaches to resource management. It is at this point that a clear break occurs between commons as a particular kind of institutional arrangement and commons-as-social-imaginary.

In applying the term “social imaginary” to the commons, I rely especially on the work of Benedict Anderson on imagined communities and of Appadurai on imagination and globalization. Commons constitute a very different kind of imagined community than a nation-state, but much of Anderson’s analysis is applicable nevertheless.... 

The commons imaginary can... be understood as a response to... fundamental changes in our social, economic, and political lives, particularly those associated with economic globalization, the accelerated pace of erasure of place-based communities and social identities, and global environmental and economic crises. The commons imaginary, like the nation-state, is also dependent for its construction on print and electronic media. The recent proliferation of the use of the term “commons”... clearly attests to the manner in which it is being constructed.

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

The redwood wars

The latest American Historical Review has a review by Neil Maher of Darren Speece's Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts:

Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign over redwoods. The legal stalemate that resulted, Speece concludes, fostered “the Deal” orchestrated by President Bill Clinton, which not only protected the old-growth redwoods of the North Coast’s Headwaters Forest but also laid the groundwork for additional protection of endangered landscapes nationwide.

Defending Giants is about more than environmentalists, however, and in order to give voice to the lumber executives, loggers, and lawyers who also serve as foot soldiers in this conflict, Speece embraces a diverse set of historical methodologies. To understand the grassroots beneath his tall trees, he scours local newspapers, digs into unprocessed archival material from North Coast environmental groups, and, perhaps most importantly, conducts dozens of oral interviews with activists, timber workers, lumber company managers, and forest policy bureaucrats. Speece also skillfully navigates a torrent of legal cases initiated by environmentalists to halt redwood logging, and tracks a wide range of timber policy proposals through the hallways of capitols in both Sacramento and Washington, D.C. Finally, he carefully balances his narrative by analyzing the annual reports of the Pacific Lumber Company, which owned these redwood forests, of its successor, the Maxxam Corporation, and of several other timber businesses from the Pacific Northwest. The result, which successfully blends social, political, legal, and business history, will interest more than environmental historians. 

Water rights V: Public rights

(Continuing the series on water rights:)

Whatever property regime applies to water, the public often retains certain rights in the resource. Thus, for instance, in American law, though a river's water may be owned by riparian landowners or appropriators, the federal government retains a "navigation servitude" in the water with which private owners (and states) cannot interfere (Trelease, 1965).

Joseph Sax

Recent decades have seen much discussion of the "public trust doctrine", rules that allow public interests, especially environmental ones, to trump the normal property rules in water. Though the doctrine has its roots in the traditional civil and common law, particularly with regard to tidelands (Selvin, 1980), its modern form was first articulated by Joseph Sax in a highly influential article (1970), in which he argued that the historical doctrine should be developed to encourage courts to subject actions that harm the environment to strict scrutiny. In the field of water rights the doctrine has been applied by American state courts in recent decades to push states to protect environmental values, even when this protection is in tension with private property rights (Craig, 2010). The best-known expression of this trend is the decision of the California Supreme Court in the Mono Lake case, in which the court ruled that longstanding water diversions from the lake by the city of Los Angeles might need to be limited by the state in order to protect ecological values being harmed by the lowering of the lake level. In recent years the doctrine has been adopted in additional countries around the world (Cullet, 2009; Blumm and Guthrie, 2012).

The public trust doctrine continues to receive support from many commentators, but it has also been criticized. On the one hand, it has been argued that the doctrine places undue reliance on an inflexible, property rule as applied by the judiciary, while environmental protection should be sought from progressive legislation (Lazarus, 1986). On the other, the doctrine has been criticizes as historically without basis, undemocratic, and invasive of private property rights (Huffman, 1989, 2007).

Next: A human right to water. The full article is here.

Forest regulation and its critics in early China

The latest Environmental History has an article by Ian Matthew Miller, "Forestry and the Politics of Sustainability in Early China", with some fascinating discussion of arguments for and against regulation in Chinese philosophy. The abstract:

Between the sixth and second centuries BCE, Chinese states developed offices to oversee the sustainable use of forest resources. This era, often cited as a period of rampant environmental degradation, also saw the emergence of a discourse of sustainability. The early philosopher texts criticized the environmental and moral degradation of their era in order to promote specific policy interventions. In response to the deforestation they depicted, moralist and pragmatist philosophers alike argued for regulations on land use as the basis of a sustainable political order. Early states used these ideas to justify state forestry, culminating in extensive forest bureaucracies under the Qin and Han empires in the second and third centuries. These forestry institutions were among the earliest in the world, preceding state forestry programs in Europe and Japan by nearly two millennia. Yet even at the early apex of state forestry, many thinkers criticized government regulation as immoral or ineffective and promoted the self-sufficient community as an alternative basis of conservation. These early texts were established as the core of the Chinese philosophical tradition, and their arguments for and against state regulation became the basis of many later debates over sustainability and institutional forestry.

9th century version of the character yu (hunter or forester)
(Chuan Cao, 2016, from the article)

Water rights IV: Property in water: Empirical and historical evidence

(Continuing the series on water rights:)

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions (Ostrom et al., 2010):

Elinor Ostrom

Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other three systems, however, have mixed records in terms of sustaining water resources, including both great successes and massive failures. Thus, the ability of a type of ownership to enhance sustainable resource management depends on a number of other factors…

Many legal and environmental historians have focused on historical transitions between property regimes in water, particularly two major developments in the Anglo-American legal world: the development of the "reasonable use" riparian regime in the early to mid-nineteenth century, and the rejection of riparian rights in favor of the system known as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains Thesis" (Webb, 1931), have supported the economic view associating with aridity with private rights in water (Robert G. Dunbar (1985) 'The Adaptability of Water Law to the Aridity of the West', Journal of the West 24: 57; Percy, 2005). Yet aridity has also been associated with strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic civilizations" with "oriental despotism", applied to the western American context by Donald Worster (1985).

California Air Resources Board’s 50th anniversary

From Legal Planet:

On Friday, January 19, 2018, the University of California, Davis, will host a major conference commemorating the California Air Resources Board’s 50th anniversary.  The conference represents a three-way partnership between UCD School of Law’s California Environmental Law and Policy Center, UCD’s Institute for Transportation Studies and CARB.

Since its creation in 1967, CARB has been a model of environmental stewardship, pollution control innovation and public service.  Years before passage of the federal Clean Air Act, CARB pioneered the nation’s first air pollution emission limits and pollution control technologies for motor vehicles—accomplishments that served as a model for the nation and the world.  More recently, CARB has led California’s multifaceted strategy to curb the state’s greenhouse gas emissions, again serving as both an inspiration and model for the global community.

The January 19th conference at UC Davis will both celebrate CARB’s past accomplishments and—at least as importantly—identify the challenges and opportunities that lie ahead for CARB in the next half century.  Featured speakers will include California Governor Jerry Brown, former USEPA Administrator Gina McCarthy and current CARB Chair Mary Nichols.  Also on the agenda is a diverse panel of “young visionaries” who will venture predictions on CARB’s future course and priorities.

Registration for the event is now open.  You can register here.

Water rights III - Property in water: Theory

(Continuing the series on water rights:)

The question of how and why water has been governed by regimes of private, public, and common property has occupied scholars for some time, often in tandem with the normative issue of which type of property regime is best for the resource. 

Harold Demsetz

As in many other fields, economic analysis has proved to be a dominant theoretical lens for understanding the development of water rights, generating both direct insights and provoking trenchant critiques. On the level of positive theory, many have built on the framework of Harold Demsetz's (1967) theory of property rights, according to which property regimes progress from common to private property as the increasing value of the resource in question, or pressure on it, renders the advantages of its privatization greater than the administrative costs of establishing and maintaining a private-property regime. According to this theory, we should expect to see water regimes characterized by relatively open access or common property in societies and environments characterized by an abundance of water, and increasing reliance on private rights as pressure on the resource increases. An influential work in this tradition is Anderson and Hill (1975), which posits that the abandonment of a common-property regime (riparian rights) in favor of private rights (the prior appropriation doctrine) in the American West was a result of the region's aridity and consequent pressure on the resource. 

Economic analysis has also developed a normative critique of existing systems of water rights. Beginning with the work of Milliman (1956, 1959) and others, many scholars have argued that common property in water leads to waste, inefficiency, and depletion of the resource. The solution, according to this line of argument, is the creation or recognition of completely specified private property rights in water, rights that will allow the functioning of an efficient market that will move water to its most valuable uses and create incentives to avoid waste (Charles J. Meyers & Richard A. Posner (1971) Market Transfers of Water Rights: Toward an Improved Market in Water Resources. Arlington: National Water Commission; Terry L. Anderson (ed.) (1983) Water Rights: Scarce Resource Allocation, Bureaucracy, and the Environment. Cambridge: Ballinger). This sort of argument has obviously resonated with Hardin's (1968) famous article on the tragedy of the commons, and also fit in well with general enthusiasm for market solutions to policy issues in recent decades. It continues to be advanced in various contexts, such as with regard to water rights in China (Speed, 2009).

Yet other theorists have questioned the above conclusions, both positive and normative.

Looking back on Lucas

Dan Farber recently posted at Legal Planet on the 35th anniversary of Lucas v. South Carolina Coastal Commission, "the high-water mark of the Supreme Court’s expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation." (For an earlier post on the case, see here.) Farber writes:

Lucas epitomized the late Justice Scalia’s crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Thirty-five years later, it is striking how little impact the case has had.

Understanding the reasons requires something of a deep dive into the case and its complicated legal setting. Lucas had purchased two lots on an island in 1986. Two years later, the state had passed a beachfront management act, which prohibited new construction on the island because it was in a high erosion zone. Relying primarily on dicta in preceding cases, the Court held that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Thus, while an owner deprived of 95% of the property’s use might sometimes recover nothing, the owner deprived of 100% would recover completely, due to the bright-line nature of the rule. 

David Lucas on the lot at stake

*****

In retrospect, the Lucas rule had some fundamental flaws that limited its potential to restrain regulators. First, it is extremely rare to find that a regulation leaves land with literally no value. It probably wasn’t even true in the Lucas case itself. Second, the legal foundations of the opinion were flimsy. Scalia cited only dicta in earlier cases, that is, language in those cases that wasn’t really necessary and for that reason wasn’t binding. And... Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government.

Lucas’s limited influence compared to early fears has something to do with Justice Scalia’s approach to opinion writing.

Water rights II - Systems of property rights in water

(Continuing the series on water rights - the first installment was here.)

Property in water takes a great variety of forms. Many countries' laws state that all water is the property of the public or the state (Trelease, 1957; Cumyn, 2007; Sun, 2009; Schorr, 2013). Most civil law countries, following Roman law, distinguish between public and private waters. The "absolute dominion" rule of the common law, still in force in some American states, treats groundwater as an unowned resource, open to capture by any overlying landowner (Dellapenna, 2013). The riparian rights system of the common law views water sources as the common property of all landowners abutting the source (Getzler, 2004). The system of prior appropriation applied in the western United States recognizes private property rights to amounts of flows of water. In Australia (Davis, 1968) and western Canada the Crown owns the water and distributes it to users through a permit system (Percy, 2005). (A useful survey of most of the world's property regimes for water, including those mentioned in this paragraph, is found in Dante A. Caponera, Principles of Water Law and Administration (2nd ed., revised & updated by Marcella Nanni, 2007).)

Though most legal systems are viewed as reflecting a view of water either as private, common, or public property, most systems in practice recognize a mix of these types of rights in water sources. For instance, often quoted (e.g. Samuel C. Wiel, "Running Water", Harvard Law Review 22: 190 (1914)) is the statement from Justinian's Institutes (1913: 2.1.1): "The following things are by natural law common to all—the air, running water, the sea, and consequently the seashore"; yet the Roman law, in every period, contained a complex mix of private, communal, and public rights in water (Caponera, 2007). Of Islamic water law it is said that "true Muslim believers cannot grab water in excess to their needs since they are obliged to allow free access to any amounts of water beyond these needs" (Al-Awar et al., 2010: 32) and that the Prophet prohibited selling of water (Caponera, 1954),  but also that "Islam supports privatization of water supply… as long as it leads to a fair and free market" (Al-Awar et al., 2010: 34). The civil law's distinction between public and private waters has often ceased to exist in practice, with state approval being required for use of private waters as well as public (Caponera, 2007). China's constitution (Art. 9) and 2002 Water Law (Art. 3) state that all water is owned by the state, but in practice a system of private rights exists (Wouters et al., 2004; Shen and Speed, 2009). In the Anglo-American world much is made of the difference between the common-property rules of the riparian system in force in England and the eastern United States, and the system of private appropriative rights in the western U.S., but both systems in fact contain a mix of features typically associated with each type of property (Smith, 2008).

If the reality of formal water rights at the level of state law is a complex mix of public, private, and common, a large body of research on water management at the local level (e.g. Maass and Anderson, 1978; Meyer, 1984; Ostrom, 1990; Rivera, 1998; Boelens, 2008) reveals an almost infinite variety of property and governance systems. In various places water is sometimes allocated in proportion to field size, in accordance with the age of the field, by family, by position on the stream, or by any other of a multitude of possible principles, often anchored in long-standing custom and close social, economic, cultural, and religious ties. Integrating these locally embedded rights into systems of state law is a complex task, one often accompanied by significant redistributions of water rights (e.g. Reich, 1994; Van Koppen, 2007; Hendriks, 2010; Hicks, 2010; Boelens and Seemann, 2014).

Next: Property in water: Theory. The full article is here.

Materialism and legal historiography

Environmental history has been debating its relationship with materialism. Now Chris Tomlins calls for legal history to turn toward the material in his recently posted "A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin". The abstract:

As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.

Might legal history be ready for an environmental turn?

Jan Brueghel the Elder & Hendrick de Clerck, Abundance And The Four Elements (c. 1606)

Water rights I - Introduction

Earlier this year I published a short chapter on water rights in the collection Comparative Property Law: Global Perspectives, edited by Michele Graziadei and Lionel Smith (also on SSRN and Academia). The chapter has a strong historical component, so I'll blog it here (in bite-size pieces). The full series is here. Here's the introduction:

In a world in which ever-growing demand for water meets an essentially finite supply, it is unsurprising that rights in water have received much attention from courts and legislatures. Perhaps more surprising are the radical variety of property regimes governing this resource and the intensity of attention water rights have received in the scholarly literature. "Property" can sometimes connote land, the classic resource of property law; yet water often serves as land's alter ego, an exemplar of the odd, the esoteric, the colorful, or the cutting-edge in property law, set against the staid familiarity of land law.

Moreover, water represents a way of thinking about property that departs from the usual models, based on land. As one commentator (Rose, 1996: 351) has written:

If water were our chief symbol for property, we might think of property rights--and perhaps other rights--in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property as entailing less of the awesome Blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems.

More generally, it has been observed (Smith, 2008: 446), "Water law is seemingly so special that many commentators have seen reflected in it their preferred paradigms for property law more generally and have drawn very different lessons from it for the problems facing water users today."

Indeed, much of the writing on water rights has revolved around the paradigmatic axis of private-common-public property, and this will be the focus of most of the following posts. Much of the literature in this vein belongs to positive theory, attempting to explain why property in water has taken various forms in various places at various times. Lying alongside this body of positive work, and oftentimes intertwined with it, is a more normative strain of scholarship, advancing arguments as to the proper property regime for water, whether in general or under specific sorts of conditions. Both topics have been deeply engaged, as well, by large bodies of historical and contemporary empirical work.

More recently, the traditional law of property rights in water has been challenged and complemented with two different sorts of "rights talk", with lawmaking institutions and legal scholars advancing and grappling with the ideas of public rights in water and a human right to water, rights that may interact with classic property rights in water in complex ways. Developments around these topics will be treated in the final posts of this series.

Next: Systems of property rights in water

Love Canal, CERCLA, and deregulation

This past summer H-Environment published a Roundtable Review of Richard Newman's Love Canal: A Toxic History from Colonial Times to the Present (OUP, 2016). An excerpt from Stephanie Malin's contribution:

While the Superfund Act [CERCLA] resulted from national awareness of Love Canal, and though Newman focuses on the success that legislation represents, we conclude with a troubling denouement. Love Canal is now Black Village Creek, filling up with a new round of working-class residents enticed by homes priced 10 – 20% below market value. Though former residents including Gibbs fought the relocation, they lost this battle. Developers won. The results have been tragic; as Newman recounts, health problems and toxic exposures have reemerged in this ‘remediated’ community, despite the extensive, state-of-­the-­art environmental engineering schemes used to filter leachate and otherwise remediate the site.

Newman’s Love Canal succeeds in highlighting for readers an exceptionally timely notion: before the institutionalization of the U.S. Environmental Protection Agency’s Superfund Program, the American landscape was riddled with unregulated, unmonitored, and often unknown chemical and industrial dumps from America’s dizzying participation in the Industrial Revolution. Communities like Love Canal that dealt with these historical mistakes, Newman shows, contended with rampant pollution, contested and rare health outcomes, and instances of deep disempowerment. Newman showcases for his readers the immense risks and voluminous unintended consequences that emerge when environmental regulations are absent and when the precautionary principle is eschewed in favor of industrial economic development, in one era after another. His historical details, and his careful examination of the numerous barriers faced by Love Canal activists, display that regulatory programs that protect public and environmental health are relatively new, have been hard won, and are constantly vulnerable to eradication. Indeed, these are the very programs that have most swiftly come under attack under the Trump Administration – which makes Newmans’s message so relevant and timely. 

Recreational conflict on British rivers

Wastwater, the Lake District, England
(Canoekayak,com)

Rounding out coverage of September's issue of Water History, Marianna Dudley published “Muddying the waters: recreational conflict and rights of use of British rivers”. The abstract:

Rivers have historically been spaces of recreation, in addition to work, trade, and sustenance. Today, multiple groups (anglers, canoeists, rowers, swimmers) vie for the recreational use of rivers in Britain. But, this paper argues, legal definitions of rights of use have not kept up with the growth of recreational river use. Focusing on two groups, anglers and canoeists, it explores the emergence of conflict between recreational users of British rivers in the twentieth century, and subsequent campaigns for universal public rights of navigation on inland waterways. As a result of conflict (real and perceived), small-scale organized groups have re-conceptualized river spaces in ways that reflect a modern engagement with, and understanding of, water through recreation. This papers foregrounds recreation as a form of water-use that generates important water-knowledge. Grounded in the Environmental Humanities, it draws on notions of legal geographies, ‘modern’ waters, and hydrocommons to suggest that small-scale conflicts on British rivers are challenging how we use, govern, and conceptualize river water.

US energy regulation

Hauling crude oil to a refinery in Casper, Wyoming, c. 1900
(Casper College Western History Center)

Dan Farber at Legal Planet posted the other day on how the US federal government's regulation of the energy sector goes back a while:

To hear some of the debate, you’d think that the Obama Administration breached some longstanding barrier that left energy policy to the states and the market. If there ever was such a barrier, it disappeared over a century ago, with the onset of World War I.  Ever since then, the federal government has been actively shaping energy production, distribution, and sale.  We wouldn’t have the oil industry or the coal industry we have today if the Feds hadn’t been involved.  That’s not to mention all the money the Feds poured into building dams for hydroelectric power. Putting aside hydro, efforts to move the nation away from reliance solely on fossil fuels dates back sixty years when Congress decided to promote the use of nuclear power.

Simply listing federal statutes is enough to show how pervasively the Feds have been involved. Here is a timeline of major federal actions with a sentence about what each one did. I’ve included only a couple of the Supreme Court decisions that have helped shape the law, and none of the major administrative actions, such as the Federal Energy Regulatory Commission’s (FERC’s) deregulation of wholesale electricity prices and revamping of power grid management. I’m also excluding environmental regulations, which obviously have had a substantial impact on the energy sector. Nevertheless, the number and scope of federal interventions is overwhelming:

1906.  Congress passes the Hepburn Act, which limited ownership of oil pipelines by oil producers.

The rest is at Legal Planet.