Historical analysis in environmental law II: "The one came not near the other all the night"

Edvard Munch, Separation (1896)

(Continuing the series on historical analysis in environmental law. Links to the full series and the article are here.)

In May 2010 Environmental History, the leading journal in its field, published an article by Aaron Sachs on antebellum environmental thought as expressed in contemporary American cemeteries. A few months later legal historian Alfred Brophy published a blog post on American antebellum constitutionalism as expressed in speeches made in cemeteries. Though both pieces focused on the same cemeteries, with rich discussions of the political, social, and cultural contexts in which they operated, neither work made any reference to the other, nor, indeed, to the literature or historical sub-discipline in which the other was located. Three years later, both pieces were released in expanded form, again with no interaction between them or their scholarly worlds.

This was not an isolated (non-)incident. Though the fields of environmental history and legal history seemingly share a wealth of common interests—the histories of capitalism, slavery, and the administrative state are a few of the topics receiving intense attention in both fields in recent years—the two fields move through parallel intellectual universes with nary a glance at one another.

If there is a certain symmetry in the blissful ignorance in which each field operates with regard to the scholarship of its sister field, the same cannot be said of the relative interest each takes in the subject matter of the other. In the last decade (2007-2016) Law and History Review, the leading English-language legal history journal, published only three articles that might be described as engaging with environmental issues; and only one of these—its author an environmental historian, not a legal one—was directly on an environmental topic. Meanwhile the situation in Environmental History, the leading journal in its field, in the same period was radically different; counting conservatively, over twenty-five articles in this journal engaged significantly with legal issues, on a wide variety of topics, including a collection of essays dedicated to a single environmental statute. A similar picture emerges from an examination of leading European journals in the two fields: On the one hand, Journal of Legal History with two articles dealing with issues of public property that might be tagged as environmental and Rechtsgechichte with three on environmental topics; on the other, Environment and History with close to thirty articles with significant treatment of legal issues.

Teaching the history of law and the environment

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

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

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

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

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

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

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

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

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

The release of energy

Al Brophy at the Faculty Lounge and Karen Tani at the Legal History Blog recently commented on John Orth's recent "'The Release of Energy': Reflections on a Legal History Trope". The trope originates with  J. Willard Hurst, "the dean of American legal historians" and also early environmental historian, who used the phrase to describe the pro-development slant of American law in the nineteenth century. Among the legal changes of the period:

Willard Hurst (U. Wisc. Law Library)

Property, once conceived in patrimonial and static terms, came to be seen as a dynamic asset to be exploited, leading to pro-productive rules favoring prior appropriation of water and fugitive minerals such as oil and natural gas, the refusal to recognise easements for light and air, and the abandonment of traditional restraints in the law of waste.

Orth goes on to doubt the utility of the phrase:

I will venture to say that I find the ‘release of energy’ to be an unhelpful trope in legal history. As the American story makes plain, energy can be released by repealing statutes or by adopting them. It can be released by legislatures or by courts. It can be released by changing the law or by leaving it unchanged. To the extent that it means ‘the power to make contracts freely’, it may be no more than a polite expression for laissez-faire. To the extent that it means ‘placing the nation’s natural wealth at the people’s disposal’, it may be simply a euphemism for Gilded Age corporate giveaways.

Environmental law and the collapse of New Deal constitutionalism

Arthur McEvoy's recent article, "Environmental law and the Collapse of New Deal Constitutionalism", he writes, is a précis for a book in progress about the history of late twentieth-century U.S. environmental law, a book to which I am very much looking forward. (His The Fisherman's Problem (Cambridge UP, 1986) is a key work of environmental-legal history.) The article, he writes:

FDR

argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New Deal regime as a whole, as it reached the peak of its vigor in the early 1970s and decayed gradually but steadily thereafter.

The river as a common space

picture: Ohio History Central

Matt Axtell recently posted "Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy". The abstract:

This paper uncovers a lost world indigenous to the legal history of the United States, a place where law was "used" as an instrument not in a way familiar to readers of Willard Hurst, as a means to identify natural resources as private property to be allocated for exploitation by the highest bidder, but instead as a means to preserve landscapes as common property sustainably enjoyed by a multiplicity of actors for commercial ends. Focusing upon a single suit brought in 1854 to assign liability for a steamboat collision, where the issue became whether pilots followed the "customs of the river" at a particular bend in the Ohio River, the paper relates how through the "customs of the river" inquiry, Jacksonian judges in the 1830s and 1840s permitted a wild, unimproved river to speak at trial in order to keep American environments open to the "disorganized public" as a whole. By the 1850s, pressed by insurers seeking standardized commercial rules of the road, federal administrators promoted a more uniform, state-managed vision. To maintain the river’s status as a "common highway" with the "customs" inquiry now out of fashion, Humphrey Leavitt, the Jacksonian judge in this case, eventually developed new rules that shared the costs of navigation between private actors in a way that maintained the Ohio River as a privately-ordered common space.