"Environmental law" - a response to Farber

I have some objections to a recent post by Dan Farber at Legal Planet, "Learning to Name Environmental Problems". 

Farber raises the interesting issue of when various issues seen today as "environmental problems" became thought of as such by the law, both in terms of seeing various issues – air pollution, water pollution, wilderness protection, and so on – as parts of a larger problem, and with regard to use of modern terms like "environment" and "pollution". But I think his answers are problematic.

Farber focuses on US Supreme Court decisions, finding its earliest uses of "air pollution" and "water pollution" and references to wilderness as something worthy of preservation in decisions from the 1960s. He also goes on to state that "The 1960s were also Congress’s first forays into issues like air and water pollution, wilderness protection, and the endangered species.  These developments set the stage for the blossoming of federal environmental law with the passages of NEPA, the Clean Air Act, the Clean Water Act, and other major legislation in the decade that followed."

Even allowing for methodological nationalism and the focus on the unrepresentative Supreme Court, this is all rather strange.

Paul E. Wolfe, Los Angeles County Air Pollution Control District vehicle, Burbank, 1947-1950?

Roman roots of modern approaches to water law

Ella Hermon recently posted "Perspectives on the history of water management: ancient roots of modern approaches". It's a very short piece but filled with references to her publications in French on Roman law issues such as flooding, integrated management, riparian ecosystems, and more, for instance her article "La culture juridique romaine de gestion résiliente du risque d’inondation", published in Index in 2020.

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.

Some foundations of modern British environmental law

The recent issue of the Journal of Environmental Law has a review by Stephen Tromans of Richard Macrory's Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart, 2020). An excerpt:

In a series of Chapters, Macrory looks at the development of the profession of environmental law: the ‘early sparks’ of environmental law as an academic discipline; practising environmental law as a barrister; and the ‘coming of age’ of academic environmental law. Here of course, the author is on strong ground, having been at the heart of the development of environmental law as an academic discipline since its inception. He has also had some, though very limited, experience of advocacy at the environmental Bar.

Chapter 3 deals with ‘the emergence of environmental lawyers’ in the UK, covering forerunners such as Professor Jack Garner, the Lawyers’ Ecology Group founded in 1972, and the inception of the UK Environmental Law Association (UKELA) in 1986. Having been involved in that process, it is always interesting to read about it, though how interesting generally to later practitioners may be questionable. The key point made is the undoubted development of environmental law ‘as a distinct and vibrant field’—the growth of UKELA reflecting that development. Macrory concludes that ‘the notion of both environmental law and environmental lawyers seems now to be fully embedded in our legal system.’ As in other areas, the possible weakness of the analysis maybe derive from the quite narrow focus of the author’s own personal journey, which does not really provide a full account of why and how environmental law came to achieve that position. In particular, a fuller analysis might have revealed quite a complex synergy between different areas of the law and different types of lawyers.

The strength of an organisation like UKELA has always been that it has drawn together lawyers from private practice, both as barristers and solicitors, lawyers working in house with industry, increasingly—and to be welcomed—lawyers working for environmental NGOs, lawyers within central and local government and agencies, as well as academics (and as Macrory points out, also many members from non-legal professions). The teaching and research in environmental law burgeoned in the late 1980s and 1990s, with many noted academics not mentioned in Macrory’s book—for example, Brian Jones and Michael Bowman working with Professor Garner in Nottingham; the engaging David Hughes at Leicester, who wrote one of the first student texts on the topic; the late Simon Ball at Sheffield, who wrote the other, later joined as co-author by Stuart Bell; Lakshman Guruswamy at Durham; Lynda Warren at Aberystwyth; and others. However, a relatively small cadre of academic lawyers would not have sustained the subject. What was also instrumental in the development of environmental law was that it became possible for people who had studied it to go on and get a job in that field and have the opportunity of making it their career. This occurred in the early 1990s because the major solicitors’ firms, and their clients, particularly US companies, began to regard environmental law as a necessary and even desirable practice area. New legislation such as the Environmental Protection Act 1990, and new EU Directives being transposed into UK law, meant that there was a need for advice on compliance. Perhaps even more important, from a commercial perspective, was the recognition of environmental risk—particularly the risk of liability for historically contaminated land—in transactions. These included loans, with very considerable interest and concern by the mainstream banking industry in such risks. The result was rapid growth in environmental departments in established London firms and the appointment of environmental lawyers as partners to head them, in some cases being appointed from an academic background. This provided strong support for the development of environmental law and the incubation of a future community of environmental lawyers and is a strong factor in it becoming an established practice area.

The origins of American environmentalism

The upcoming issue of Environment and History has an interesting, extended review by Thomas Le Roux (translated from the original French review in Le mouvement social) of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018). According to the review, the book does not try to downplay the importance of Rachel Carson's Silent Spring, but rather to point out the rich history of environmentalism (and environmental regulation) long predating Carson's work, with sources in labor, public health, social justice, and other movements. An excerpt:

In the second half of the nineteenth century... local municipalities were pressed to provide public health services or access to drinking water. The fight against pollution was one of the main issues of the urbanising nineteenth century, and this is the subject of the second chapter, which exposes different types of action to protect urban environments between 1870 and 1945. In particular, women, industrial workers and racial minorities began to claim environmental justice. As unions organised, and within the context of a wider social movement during this period, the working and lower classes managed to have their voices heard in order to improve their living conditions in an insalubrious urban environment. Often pressured by radicals, socialists and reformers, a number of communities took action to address local injustices. For example, between 1897 and 1904, under the directives of the radical Mayor Jones, Toledo, Ohio inaugurated a municipal service for garbage collection, as did Milwaukee, Wisconsin, which was led by a socialist-leaning mayor after 1898. It is particularly interesting that environmental activists also found themselves fighting for better industrial hygiene to protect the health of factory workers. It is in this milieu that the socialist John R. Commons, who established several health and safety measures in Milwaukee, participated in creating the American Association for Labor Legislation. His work, alongside that of Professor Alice Hamilton, resulted in a more protective regime for industrial hygiene in Chicago and in the whole of the State of Illinois. In this urbanising world, the desire for nature was not only a privilege of the upper classes, but the contemporary push for segregation was such that numerous conflicts emerged regarding the use of forests, beaches or the rural surroundings of cities for a day’s relaxation. In the middle of natural spaces, unions and local communities created educational camps that focused on learning about natural environments for urbanites otherwise confined to their city districts or to their factories. These different actions diffused a renewed sentiment of the need for nature which was well-rooted prior to the second World War, and Montrie highlights that this need was reinforced with the federal program for conservation during the New Deal.

The Santa Barbara Oil Spill

H-Environment recently published a review by Samm Newton of Teresa Sabol Spezio's Slick Policy: Environmental and Science Policy in the Aftermath of the Santa Barbara Oil Spill (U. Pittsburgh Press, 2018). The Santa Barbara spill is often pointed to as one of the foundational moments of modern American environmentalism and environmental regulation, but Spezio seems to flesh out the picture.

Newton writes that Spezio

explores the relationships between oil pollution and political changes in the 1970s and asks how the Santa Barbara oil spill became a watershed moment in the history of environmental and science policy in the US, especially in regard to the Clean Water Act of 1972 (CWA). To answer this question, Sabol Spezio analyzes how the oil spill influenced the CWA and the National Environmental Policy Act (NEPA), as well as the formation of the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA). She then turns to the changing science and technology that became essential to understanding marine oil pollution and how that contributed to detecting water pollution in fresh water systems. She argues that the US government’s reactions to the Santa Barbara oil spill improved their ability to address controlling, measuring, and regulating water contamination on a federal level. 

Her argument is broken into three sections. Part 1 describes environmental science and policy before 1969. Before the oil spill, no entity was officially in charge of managing the oceans. Federal waters were regulated by the Bureau of Land Management (BLM) and the United States Geological Service (USGS) under the guidance of the very oil companies exploiting the resources located in those waters. Additionally, scientists used different protocols and technologies to measure oil pollution. Before 1969, water quality was measured by smell, taste, sight, and/or the presence of disease. The oil spill in California challenged that precedent, contending that measurement by the senses was inefficient. A flurry of new research methods and technologies, specifically gas chromatography, followed in an effort to estimate both oil in water and the dispersants used to combat oil pollution.

*****

As Sabol Spezio argues, it took a salient crisis, like the debacle that was the oil spill, to make regulatory change possible. Several events in the 1960s and ’70s, such as the publication of Rachel Carson’s Silent Spring (1962) and the Cuyahoga River fire, contributed to the salience of environmental degradation in the American attention cycle. Sabol Spezio adds to the literature by claiming that the Santa Barbara oil spill was not just one of many environmental crises but was the tipping point event that made the reform of US environmental regulation possible. 

The Roman public trust doctrine

I've often expressed impatience with the throwaway references to Justinian (often misconstrued as an adjective!) that are so ubiquitous in discussions of the public trust doctrine. Now comes Bruce Frier's review of Domenico Dursi's Res Communes Omnium. Dalle necessità economiche alla disciplina giuridica (Jovene, 2017) to make some order for those of us for whom Roman law is something of an enigma. Frier writes, explaining his own view (I'm omitting most citations and footnotes):

By the Late [Roman] Republic, the general idea of res communes was already well known in Roman culture. Plautus’ comic play Rudens, thought to date from c.190 B.C., features a fisherman (his occupation is important!) proclaiming that “the sea is unquestionably common to all persons” (mare quidem commune certost omnibus) in a longer speech that emphasizes fish as belonging to their captor.... [T]he concept becomes much more familiar in Latin sources from the Late Republic and Early Empire. Forms of common property are most often the air and the sea, but Cicero adds in the seashore (litus) as well. Although the familiar idea of common property was further elaborated in Early Imperial poetic or Stoic theories on the origin and development of human culture, there is no sign that these theories had any pronounced influence on the law; certainly they lead to no demonstrable legal conclusions.

By the Late Republic, a second cultural element had emerged: a widespread and often expressed disquiet about the startling proliferation of villas along the coast of central Italy and the Bay of Naples.... The architects of these villas, capitalizing on recently-discovered hydraulic concrete, often put down substructures extending beyond the shore and out into the sea — a phenomenon quite commonly referred to in legal texts, and one of particular concern to poets such as Horace who perceived the structures as morally hubristic. More exciting, however, is the discovery that not a few of the maritime villas incorporate fishponds so large that they were plainly intended to produce fresh fish not just for the villa, but for local markets.... [T]hese fishponds may well have brought the villa-owners into direct confrontation with more humble local fishers. 

The Santa Barbara oil spill

Richard Frank posted yesterday at Legal Planet on the 50th anniversary of the Santa Barbara oil spill. Some excerpts:

In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.

Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.

Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.

*****

The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation. 

25 years of Israeli environmental law?

A strange message hit my email inbox today, advertising an upcoming event hosted by an Israeli law school and a leading Israeli environmental NGO to celebrate 25 years of Israeli environmental law.

I'm more than a little puzzled by this as I'm not sure how exactly they came up with 1993 (or thereabouts) as the beginning of Israeli environmental law. Important environmental statutes, including the Regulation of Trades and Industries Ordinance, 1927; Oil in Navigable Waters Ordinance, 1936; Public Health Ordinance, 1940; Wild Animal Protection Law, 1955; Abatement of Nuisances Law, 1961; and the 1971 water pollution amendments to the Water Law (itself enacted in 1959) all predate 1993 by quite a bit. The Abatement of Environmental Nuisances Law, 1992 more or less fits the timing, but it happens to be a pretty unused (and useless) law. (I've written about a number of these statutes in a book chapter, "A Prolonged Recessional" (Academia and SSRN).)

Old Knesset (parliament) building on King George Street, Jerusalem

If court decisions are what the organizers have in mind, the early '90s again seem like an odd place to start, given earlier cases such as the 1959 public trust doctrine case Puterman v AG, a series of 1960s Supreme Court cases on air pollution, and so on.

It may be that the organizers have in mind the founding of said environmental NGO (Adam Teva V'din), founded circa 1990, though one might be forgiven for thinking that to be a somewhat self-centered view.

So I'm stumped.

Environmental originalism

Over at Legal Planet Dan Farber recently blogged on "The Truth About Environmental Originalism". Farber writes:

Scott Pruitt has taken to talking about environmental originalism – going back to the original intent of our environmental laws. But he’s got the original intent completely backwards. The statutes weren’t intended to protect jobs or grow the economy. They were intended to protect the environment, with cost at best a secondary consideration.

*****

In fact, some of the key provisions of our environmental laws preclude consideration of cost or even technological feasibility. For instance, the Clean Air Act requires EPA to set national air quality standards based entirely on possible risks to public health – and “with an adequate margin of safety.” As Justice Scalia himself was forced to admit in Whitman v. American Trucking Ass’n, the statute “unambiguously bars cost considerations.” In fact, he said in a footnote, EPA would be reversed in court there was proof that it secretly did take cost into account. (Pruitt might want to take note of this, given the number of leaks from the government these days.) As Scalia also recognized, these cost-oblivious air quality standards are the linchpin of the Clean Air Act. 

*****

This is not the only statutory provision that ignores costs. The Endangered Species Act prohibits agencies from jeopardizing the survival of species in absolute terms, with only a rarely used exception for extraordinary cases, requiring approval by a special cabinet-level committee. OSHA requires that standards for toxic chemicals in the workplace be set to eliminate any significant risk to workers, unless doing so would bankrupt the industry.

*****

It’s important to recognize that the federal environmental laws were passed in a time of remarkable public ferment over the environment. Don’t forget this was the era of the first Earth Day, of Rachel Carson’s Silent Spring, and of a public shocked by a fire on the Cuyahoga River and the Love Canal toxic dump. As I discuss in a recent paper, even arch-conservatives like Barry Goldwater and William F. Buckley were calling for much stricter pollution control. The public today remains broadly supportive of environmental regulation but the issue is no longer a top priority for most people. But it was an urgent priority in the 1970s when these laws were passed. The original intent was about as far away from current Republican views as humanly possible. If they could see that Scott Pruitt had become head of the EPA, the framers of these laws would have been appalled.

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.

The Storm King controversy

The recent Environmental History has a review by Ted Steinberg of Robert Lifset's Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (U Pittsburgh Press, 2014). Steinberg writes:

Con Ed seemed to be cruising toward its goal of building the plant when Scenic Hudson, an environmental group formed in 1963 to stop the project, began reckoning with the full ecological impact of the hydroelectric plant. Writer Robert Boyle had discovered that the Hudson River was alive with marine life. Boyle equated the prospect of licensing a plant in the Storm King area with the thought of slaughtering sheep in his own living room. The idea was slowly dawning on environmentalists that the hydroelectric plant would doom the river’s population of striped bass. Lifset argues that the introduction of ecological issues transformed the environmental movement in the Hudson Valley and helped lay the groundwork for its ultimate success.

This increased focus on ecology alone would never have led to the demise of Con Ed’s plans were it not for an equally important turn in the law that Lifset also explores in his book. In 1965 a federal appeals court ruled that Scenic Hudson was an aggrieved party and had the legal standing to launch a challenge to the Federal Power Commission with respect to Storm King. The decision reprimanded the power commission for failing to create an adequate evidentiary record, thereby foretokening the later implementation of environmental impact statements.

*****

Lifset offers a solid work of history that draws attention to the role of both ecological and energy issues in shaping environmentalism. His focus on legal change is also a welcome addition for those seeking a fuller understanding of the environmental movement. 

Peter Sand on Karl Neumeyer as precursor of transnational environmental law

Alongside the thread on early environmental law courses, people have been wondering about the first environmental law textbook. Today Peter H. Sand, Lecturer in International Environmental Law at the University of Munich, joins us for a guest post on a contender for the title (see also his comment here). Peter writes [notes are after the jump]:

The history of international environmental law as an academic topic is generally associated with the emergence of treaties and case law on specific sectors such as shared watercourses, the oceans, or – from 1900 onwards – selected wildlife species. Doctrinal attempts at identifying common (trans-sectoral) elements, and a coherent discipline of international regulation and governance in this field, did not make their appearance until well into the second half of the 20^th century, with a prevailing and near-exclusive focus on public international law.

One notable exception was the pioneering work of Karl Alexander Neumeyer (1869-1941), who approached the subject from his distinct perspective of conflict of laws, in a monumental four-volume treatise titled Internationales Verwaltungsrecht (International Administrative Law, 1910-1936).[1] His life-time vision was the development of a new unified system of rules applicable to the transnational aspects of administrative law, to match the well-established conflict rules of private international law and procedure. And in the process, as part of an effort to demonstrate the pragmatic foundations of his approach in different sectors of public administration, he also assembled and analyzed a unique compendium of contemporary legal source materials that would indeed qualify today as typical ‘transnational environmental law’.

Chapter 8 in volume 2 of Neumeyer’s treatise (pp. 1-135), published in 1922, was headed Naturkräfte und Naturerzeugnisse (forces and products of nature). The first section, dealing with internationally shared water resources and water power, is based on the author’s earlier study of “water uses in international administrative law” (1915),[2] criticizing the rigid territorial sovereignty principle invoked by the Austrian Administrative High Court in the notorious 1913 Leitha River case,[3] and advocating the reciprocal protection of foreign legal interests along the lines of the 1909 US-Canadian Boundary Waters Treaty.[4] Other sections deal with the transboundary regulation of mineral resources; agriculture, forestry, hunting and fishing (based in part on the author’s early practical experience as law clerk at a district court in the Bavarian-Austrian border region); and the management and conservation of marine living resources, including a discussion of the 1893 Bering Sea fur seals arbitration.[5] Karl Neumeyer’s emphasis on the need for a mutual ‘other-regarding’ accommodation of foreign concerns, across the entire spectrum of nature-related topics, was way ahead of his times.

Neumeyer taught international law – with a focus on history and conflict of laws – at the University of Munich from 1901 onwards, until the Nazi regime forced him into retirement in 1934 because of his Jewish ancestry and barred him from continuing to work with the Hague Academy of International Law (where he had first lectured in 1923) and the Institut de Droit International (which had elected him to full membership in 1926).[6] Ultimately, when he was notified of the impending eviction from his house and the confiscation of his library, he and his wife decided to commit suicide on 16 July 1941.[7] There is a memorial tablet at their former home near the university; a Neumeyer-Strasse in the city; and in 2008, the Munich Law Faculty (whose dean he was in 1931-32) named the building that houses its Institute of International Law (which he had helped to create) in Karl Neumeyer’s honor and memory. 

William Colby, first environmental law prof?

Ansel Adams, William E. Colby (from Carl P. Russell, One Hundred Years in Yosemite (1947))

In a new twist on the search for the first environmental law course, Dan Farber at Legal Planet says he has identified the first environmentalist law teacher:

I’m pretty sure that William E. Colby (1870-1964) qualifies as the nation’s first environmentalist law teacher, if only because environmentalism was very young at the time..  Colby was a lecturer on mining law and water law at Berkeley for twenty-one years, retiring in 1936.  (That doesn’t make him the first natural resources teacher;  Judge Lindley had taught mining and water law before him.) Colby was a close friend of John Muir. He joined the Sierra Club in 1898 and, except for two years, was the Secretary of the Sierra Club from 1900 to 1946.  The Sierra Club credits him with contributing substantially to saving redwoods, enlarging Sequoia National Park, and establishing Kings Canyon and Olympic national parks.  He was also the first Chair of the California State Parks Commission.

I was originally going to call Colby the first “environmental law” professor, but it’s not clear how much his environmental concerns entered into his teaching or scholarship about environmental law.  Even then, the environmental impacts of mining were not unknown or without a legal dimension: a federal judge in the Nineteenth Century had halted hydraulic mining in California because of its devastating impacts on the state’s rivers.  His Sierra Club bio does link his legal and environmental work, saying that his”notable eminence as an attorney who specialized in mining and water law . . . . served him well in his conservation work.”  He did represent environmental interests in a couple of cases.

At the outset, I called Colby the nation’s first environmentalist law professor.  Obviously, I’d be very interested to learn if there were others from the era, but I’m guessing the title will stand.  (I’d also love to hear from anyone who knows more about Colby). Either way, it’s nice to know that law teachers became involved in environmental issues at such an early stage.

Arnold Reitze and environmental law in the sixties

Continuing the thread on early environmental law courses, Prof. Arnold Reitze has kindly allowed me to post his recollections of his work at Western Reserve in the 1960s, a demonstration of the interesting work that was being done in environmental law in this period in the academy and at a variety of governmental levels, as well as of the cross-fertilization of teaching, scholarship, and activism. Prof. Reitze writes:

I moved to Western Reserve in 1965 to be the school’s tax teacher. I earned my living teaching tax, but spent much of my time as an environmental activist. I was the counsel for Citizens for Clean Air and Water and for the TB Association’s Air Quality Committee. I also represented the Izaak Walton League. I was very involved in the first attempt to use a voter petition to force the legislature to enact environmental laws. The CAA of 1963 created a conference program for air quality improvement, and Cleveland was one of the areas subject to that laws program. I spent a lot of time on that effort. The 1965 Federal Water Pollution Control Act created a zoning program for improving water quality, and I was active in working to set stringent standards for northern Ohio’s rivers. 

When Louis Toepher became Dean he wanted to hire an experienced tax teacher, and he asked me what I wanted to do. I said I wanted to start an environmental program focusing on eastern pollution issues. I then became the nation’s first full-time environmental law teacher. (Joe Sax also was doing some environmental law work, but he spent his career in water and natural resources and never got seriously involved with the pollution control programs that were transferred to the EPA in 1970.) I taught natural resources law, which eventually was named environmental law, but I believe I continued to teach the more traditional natural resources law with a focus on Ohio issues. I also taught water law and administrative law (which was primarily nuclear energy). [I was active in the fight to stop Davis-Bessee plant.] My work on water pollution led to the “Wastes, Water and Wishful Thinking: The Battle of Lake Erie,” 20 Case W. Res. L. Rev. 5 (1968). My air work led to “The Role of the “Region” in Air Pollution Control,” 20 Case W. Res. L. Rev. 809 (1969). This was based on the work to implement the CAA Amendments of 1967. My work on Ohio’s surface mining led to “Old King Coal and the Merry Rapists of Appalachia”, 22 Case W. Res. L. Rev. 650 (1971). In 1968 I started working to produce the Cleveland Air Pollution Code, which I coauthored with Jim Wilburn; it passed in 1969. My research assistant Jim Walpole became the first lawyer for the Cleveland air pollution program. I was also an advisor to Mayor Carl Stokes, Governor Gilligan and was state campaign chairman for Ray Marvin’s run for attorney general. He lost, but was made the deputy AG for administrative issues, and I continued as an advisor to the AG’s office. 

In 1970 the Ford Foundation fully funded an environmental law program at the George Washington University and I was hired to be the director.

For more on early environmental law teaching, see here and here.

Roscoe Pound, environmental law professor

In an interesting twist in the discussion on the first environmental law course in the US, Richard Lazarus writes:

When I decided to research the history of environmental law teaching here at Harvard a few years ago, which took me back to David Cavers and into the 1950s, I also decided to follow the “natural resources” thread as well. What I discovered was that Harvard Law School’s first “environmental law professor” based on that broader view was Professor Roscoe Pound (later Dean Pound). Pound arrived at Harvard around 1910 from the University of Nebraska. Pound had a BA/Masters/PhD in Botany. I think he was the first PhD in Botany from the University of Nebraska. He was not a lawyer though he went to law school. His primary interests were mining law and water law. 

Roscoe Pound

Upon arriving at Harvard, Pound taught a course in the fall of 1911 in the “Law of Mining and Irrigation.”  When he became Dean a few years later, he turned both subjects over to lecturers, one taught the mining law class and the other water law. Lucas Bannister, who taught the water law class, was a highly regarded expert in water law from Denver, Colorado. Bancroft Gherardi Davis was the lecturer on mining law.   Each taught the class for a few decades and were highly acclaimed lawyers of their day.

Pound also wrote about water law. One of his most famous law review articles, Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. (1914) concerns legal evolution and what Pound called “The Socialization of Law.” Pound used water law in his article as a primary example of law’s socialization, describing how the need to “protect the general social interest” in water’s reasonable use “is changing the whole water law of the western states.”  He concluded, presciently, “It means that in a crowded world the social interest in the use and conservation of natural media has become more important than individual interests of substance.”

Pound was a complicated guy and some of his later thinking was far less glorious, and worse than that.  But I came across the 1914 article when I first began law teaching (now a few years ago), and have always thought it worth passing on to my students. In some ways, it is reassuring. In other ways, very much not so, because it underscores how long the problems have been known and how hard it has proven to achieve the law reform necessary to address them. Climate change is the latest, of course.

For more on the first course, see here.

The first environmental law course

Spurred by Laurence Tribe's claim that he taught the first environmental law class in the US, an environmental law professor list recently discussed what was the first environmental law course taught in the US. Julian Conrad Juergensmeyer noted that he taught a course called the Law of Pollution Control at Indiana University Law School Bloomington in 1966 and 1967, and someone thought that Joseph Sax taught a course at Colorado in the mid-sixties.

David Cavers (U Chicago Photographic Archive)

So far, though, it seems that David Cavers at Harvard was the first (preceding Tribe by at least five years). Based on course catalogs at Harvard, Richard Lazarus found that Cavers taught a course “Legal Protection of Environmental Quality” in 1967, a course in “Government Regulation: Product and Environmental Hazards” in 1965 that focused on “air pollution, water pollution, and atomic radiation”, and a course called “Problems in the Public Control of Atomic Energy” in 1951.

Can any of you think of any earlier classes, including those not necessarily called "environmental law"? What about in countries other than the US? Please write me with thoughts.

Origins of the Clean Air Act

Christopher Ahlers has posted "Origins of the Clean Air Act: A New Interpretation", what should be another nail in the coffin of the still-too-prevalent view that environmental law began around 1970. The abstract:

Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.

Harry Sternberg, Smoke Stacks in the Moonlight (1937)

In Memoriam: Frank Grad

Columbia Law School notes the recent passing of Professor Emeritus Frank Grad. Some excerpts from the press release:

Born in Austria in 1924, Grad immigrated to the United States in 1939 to escape Nazism. He and his sister left Austria on the Kindertransport, and Grad lived with a family in England before coming to the U.S. 

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In 1959, Grad was given the task of revising the New York City Health Code, including provisions relating to water pollution and its prevention, control of sewage fallouts, and the control of toxic substances and poisons. The code also included numerous provisions relating to the protection of food and water supplies against contamination by pollutants.

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In 1969, Grad became director of the Legislative Drafting Research Fund and a full-time faculty member. He chose to take on classes in an emerging area in which his expertise would prove invaluable: environmental law. Grad was the first to teach the subject at Columbia Law School and, when he couldn’t find any materials to teach with, he wrote one of the earliest books on the subject. 

“Frank Grad was one of the true pioneers in the study and teaching of environmental law,” said Michael B. Gerrard, the Andrew Sabin Professor of Professional Practice and director of the Law School’s Sabin Center for Climate Change Law. “The field's seminal year was 1970 (when President Nixon created the EPA and signed the first major laws of the modern era), and Frank was out of the box with one of the first casebooks in 1971, and then one of the first treatises in 1973.  He trained generations of environmental lawyers.”

Grad updated his eight-volume Treatise on Environmental Law twice a year.

According to a December 20, 1969, article in The New York Times, “Environmental Law is Attracting Students,” 69 students applied to be in Grad’s 18-seat first course. “The school, in an unusual relaxation of its rules, will permit 30 students to take the course,” the Times wrote.

Storm King again

We've posted on the 1960s Storm King controversy before, and plan to do so again, soon. In the meantime, here's a notice (by way of Legal History Blog) of the recent publication of Storm King Mountain and the Emergence of Modern American Environmentalism by Robert Lifset (U. Pittsburgh Press, 2014). The publisher's description:

The beauty of the Hudson River Valley was a legendary subject for artists during the nineteenth century. They portrayed its bucolic settings and humans in harmony with nature as the physical manifestation of God’s work on earth. More than a hundred years later, those sentiments would be tested as never before. In the fall of 1962, Consolidated Edison of New York, the nation’s largest utility company, announced plans for the construction of a pumped-storage hydroelectric power plant at Storm King Mountain on the Hudson River, forty miles north of New York City. Over the next eighteen years, their struggle against environmentalists would culminate in the abandonment of the project. 

Robert D. Lifset offers an original case history of this monumental event in environmental history, when a small group of concerned local residents initiated a landmark case of ecology versus energy production. He follows the progress of this struggle, as Con Ed won approvals and permits early on, but later lost ground to environmentalists who were able to raise questions about the potential damage to the habitat of Hudson River striped bass. 

Lifset uses the struggle over Storm King to examine how environmentalism changed during the 1960s and 1970s. He also views the financial challenges and increasingly frequent blackouts faced by Con Ed, along with the pressure to produce ever-larger quantities of energy. 

As Lifset demonstrates, the environmental cause was greatly empowered by the fact that through this struggle, for the first time, environmentalists were able to gain access to the federal courts. The environmental cause was also greatly advanced by adopting scientific evidence of ecological change, combined with mounting public awareness of the environmental consequences of energy production and consumption. These became major factors supporting the case against Con Ed, spawning a range of new local, regional, and national environmental organizations and bequeathing to the Hudson River Valley a vigilant and intense environmental awareness. A new balance of power emerged, and energy companies would now be held to higher standards that protected the environment.