The usufructuary ethos

H-Environment recently posted a review by Jay David Miller of Erin Drew's The Usufructuary Ethos: Power, Politics, and Environment in the Long Eighteenth Century (U. Virginia Press, 2021). Some excerpts from the review:

Erin Drew summarizes the core principle of the early modern set of ideas she calls “the usufructory ethos” as follows: “What you have is ‘yours’ only in a partial and temporary sense” (p. 47). Nowhere did this principle manifest itself more clearly than in the figure of the landlord, who commanded power over tenants and by extension the land itself, but who was also, theoretically, bound by responsibilities to both subordinates and superiors. The concept of “usufruct”—which originated in Roman law but was heavily mediated through Christian theology—addressed the paradoxical nature of the landlord’s power by stipulating that the rights associated with ownership were circumscribed by far-reaching and interconnected obligations “that linked not only past, present, and future but [also] humans, nonhumans, and God, as well as the social, political, and natural worlds” (p. 2). Drew argues that recovering the history of the usufructory ethos in late seventeenth- and early eighteenth-century Britain changes the way we understand the human relationship to the environment in this era and could inform how we imagine it today.

*****

After tracing various iterations of the usufructory ethos through the writings of John Howe, Richard Allestree, Thomas Adams, Matthew Hale, and Thomas Tryon, Drew concludes chapter 1 with the more familiar John Locke. Locke’s significance to the study lies in the fact that the theory of property articulated in his Second Treatise on Government (1690) both relies on the concept of usufruct and undermines it in ways that foreshadow its gradual recession. While the Second Treatise contains usufructory provisos against waste and spoilage, Locke included these mainly as a way of protecting individual property rights, rather than stewarding resources that properly belong to God for the sake of others. Furthermore, Locke’s monetary theory, in which the fruits of labor are abstracted into capital, rendered concerns about waste and spoilage obsolete, as did his assumption that the European “discovery” of America opened up a limitless supply of land. By identifying these features of Locke’s thought, Drew illustrates how the usufructory ethos would come under increasing pressure as commerce and colonization came to define the seventeenth and eighteenth centuries. 

Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

In the last post in this series I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics (most recently Markus Dubber) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion, are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of air pollution, but it is likely that 'police' was—for better or worse—a fertile source of much more of environmental regulation than we yet realize.

An important sub-set of police regulation was the public health law that grew up in the Victorian age as a response to the urbanization and industrialization of the period, giving expression to the sanitary movement's concern with the effects of environmental degradation on human health and welfare, particularly of the working classes. Public health statutes, bylaws, regulations, and licenses regulated issues such as smoke pollution, industrial odors, and sewage disposal. This highly developed area of law could be investigated for its influences on later environmental law, including its emphasis on technical solutions to pollution problems and the division of labour between central and local regulation that continue to characterize the field. Public health law is also likely responsible for the creation of a bureaucracy of professionals with expertise in the health and engineering aspects of pollution that would form the core professional staff of modern environmental regulators.

Associated with public health law in the Anglo-American world was the law of statutory nuisances. Statutory nuisances allowed for private and public administrative and criminal enforcement of prohibitions on various forms of pollution and encroachment on the public domain, and thus are a likely source of much modern environmental law. Moreover, this area of law may be a source of the prevalent confusion over the role of nuisance law in the pre-1970 area. It may be true that 'nuisance law' was the dominant vehicle for environmental regulation in this period; yet the category of 'nuisance' included not only a common law variant (private and public, the latter of which could be criminally prosecuted), but also statutory nuisance, with its explicit prohibitions on specific types of environmental harms and risks, such as discharges of pollution into water sources and emissions of 'noxious vapours'. If the law of nuisance one imagines is the private, common law of nuisance usually thought of, modern environmental legislation might indeed seem to represent a major revolution. If, on the other hand, statutory nuisance is given its due, the environmental legislation of the 1970s may look more like an elaboration of existing law.

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.

Inter-imperial riparian law III: American sources of French-Canadian water law

Continuing where yesterday's post left off:

Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court.

Jonathan Sewell
(Appleton's Cyclopaedia of American Biography, 1900)

The earliest fully reported case of this type was the 1832 case of Oliva v. Boissonnault. James Oliva sued Nicolas Boissonnault in the court of King’s Bench, District of Quebec, for placing obstructions in the Rivière du Sud, blocking the floating of logs downstream to the St. Lawrence. Chief Justice Jonathan Sewell ruled for Oliva, explaining that under French law the public had a right of passage on every stream capable of floating logs or rafts. Alongside his discussion of French law, he noted that the public’s right was the same in England and America, citing Kent’s Commentaries with regard to the latter. Two years later St. Louis v. St. Louis, another water law dispute, reached the courts. This time the case involved a riparian landholder diverting water through a canal to his sawmill so that it bypassed the gristmill and carding and fulling mill of his downstream neighbours. Sewell, sitting this time in the Provincial Court of Appeals, again cited Kent, here in support of the proposition that a riparian landowner might ‘conduct such portion of the stream as he requires for the amelioration of his - property by canals or otherwise through the extent of the land which he occupies, but he must return it to the stream before it reaches the confines of his neighbour’s estate’.

Property in whales

Angela Fernandez recently published a review of Robert Deal's The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:

Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)

So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....) 

Environmental law books

Dave Owen at Environmental Law Prof Blog recently compiled a list of books on environmental law recommended by other professors for incoming law students with an interest in the field. The results are all histories in one way or another:

1. The favorite: Jonathan Harr's A Civil Action.
2. The storytellers: Zyg Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River and Oliver Houck's Taking Back Eden: Eight Environmental Cases that Changed the World.
3. Houck's and Richard Lazarus's Environmental Law Stories.
4. Lazarus's The Making of Environmental Law.
5. Gerald Stern's The Buffalo Creek Disaster.

This is obviously a very American list and one with a very recent focus. Anyone have any other suggestions?

More forest law

Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):

The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.

William the Conqueror, the Bayeux Tapestry

Water law, Ibsen, and Flint, Michigan

Jim Salzman recently posted "Lessons from Flint" at Legal Planet, giving us some historical (and literary) perspective. An excerpt:

A public-minded researcher discovers serious contamination of drinking water. His efforts to alert local officials are rebuffed. Concerned over how this will affect their reputation and the town’s economy, the authorities sit on the evidence and deny any problems. All the while, trusting people continue to drink unsafe water.

While the setting may call to mind recent events in Flint, Michigan, this is actually the plot from Henrik Ibsen’s classic 1882 play, An Enemy of the People. The places and dates have changed, but the challenges of providing drinking water remain. Just how safe really is our water and how can we make it safer?

Édouard Vuillard, An Enemy of the People, program for Théâtre de l'Œuvre, November 1893

We marked the fortieth anniversary of the Safe Drinking Water Act in 2014. In many respects, it was a date well worth celebrating. Most Americans take tap water for granted. We enjoy some of the safest and most reliable drinking water in the world. More than 90 percent of customers receive water that meets all standards all the time. This is a far cry from a century ago, when waterborne illnesses and deaths were commonplace. The famed aviator brother, Wilbur Wright, died of typhoid in 1914. The 1916 polio epidemic required quarantines in New York City, where 9,000 cases were reported. Today, these and other waterborne diseases have virtually disappeared in America. Glass half full.

Yet the glass remains half empty. Just ask the residents in Charlestown, West Virginia, where two years ago a chemical spill shut down water supplies, or in Toledo, Ohio, where seven months later an algal bloom closed their water system. The threats in those cases were due to causes beyond the reach of the Safe Drinking Water Act – a breach in a chemical storage tank atop a river bank in Charlestown, and excessive nutrients from agriculture flowing into Lake Erie in Toledo. These incidents made clear that action to ensure safe drinking water needs to start well upstream of the water treatment plant.

Art and the history of environmental law - part III: Art and the conditions of environmental law (more Impressionists and Wilde)

Following Part II of this series, I continue the discussion of art and the conditions of environmental law as seen in the work of the French Impressionists.

Monet and Pissarro produced many landscapes of the industrializing Seine Valley around Paris, as did other Impressionists and Post-Impressionists. Manet’s 1874 Argenteuil, les canotiers (1874, above), with its idyllic foreground and smoky background, seems uncertain in its attitude to industrial pollution. It was ridiculed by a contemporary critic who insinuated that the blue of the river must have been the product of industrial pollution, yet T.J. Clark sees it as the picture in which effort was made to place in order the middle class, the countryside, and industry “and insist they belong together.”  

Gustave Caillebotte’s depictions of the same site show a cubist-like ability to shatter reality into multiple points of view. While his Boats Moored at Argenteuil (1883, above) shows no hint of the industry in the area, Factories at Argenteuil (1888, right) shows a bleak industrial landscape with gray smoke feeding gray skies, reflected again in the gray water. La Seine à Argenteuil (c. 1892, below), with its almost natural landscape dominating the foreground and smoking factories in the background, juxtaposes these two aspects of reality, distinguishing, on the one hand, between pristine nature and industrial pollution, yet at the same time melding chimney smoke and natural clouds.  Are these depictions of Argenteuil simply the artist’s attempt to depict different facets of reality, a celebration of industrialization, or a critique and warning of the threat posed by modern pollution to the aesthetic of nature and countryside?

Art and the history of environmental law - part II: Art and the conditions of environmental law (Impressionists and Dickens)

Following Part I of this series, today I take up art and the conditions of environmental law.

A survey of paintings and other works of art from Western Europe and North American reveals that air pollution was a salient fact in the pre-1970 industrialized West. This point, while basic, is not trivial, as one might have imagined that the relative lack of advanced legislation in this area was due to clean skies, or at least to a lack of awareness of the problem. Yet it is clear that artists from Turner to the French Impressionists and on through the American Works Progress Administration were fascinated by air pollution. The aesthetics and politics of this fascination will be explored later; at this point it will suffice to demonstrate its prevalence.

A good place to start is the French Impressionists. Though associated today with paintings in and of nature, they were strongly attracted to scenes of industrialization and modernizing landscapes. The movement was named after Claude Monet’s Impression, soleil levant (1872-73, right), a painting relevant to our topic. The rising sun is indeed prominent in this landscape of Le Havre harbor, but the left side of the painting is dominated by smoke-belching smokestacks and their reflections in the water. Their activity suggests that the gray “mist” enshrouding the rising sun and streaked through the sky above and to the right is in fact the product of air pollution, not morning mists or the artist’s hazily romantic vision.

Many of Monet’s other paintings feature air pollution as well. His paintings of London typically feature chimneys and smokestacks spewing thick clouds of smoke into the air of a city covered in a thick layer of air pollution (often denoted “fog” in the works’ titles). Perhaps most striking are the paintings purporting to be studies of the effect of sunlight on the thick London air; the reference to sunlight in the names of these paintings seems almost ironic. In Le Parlement, effet de soleil (1903, left), for instance, the sunlight indeed plays upon the Thames on the right of the picture, yet in the overall composition the sun’s rays are overwhelmed by the thick, polluted air, much as they are in other paintings in the Houses of Parliament series.

Dickens provides a literary counterpart to Monet’s paintings of London’s air pollution in the opening of Bleak House:

London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. . . . Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snowflakes—gone into mourning, one might imagine, for the death of the sun . . . .

Moral and environmental pollution

Front cover for a booklet advertising tablets for coughs and colds brought on by smog (1913) (Wellcome Library)

Not long ago the occasion of the Jewish new year gave me cause to write on the connection between moral and environmental catastrophe. Brett Beasley recently came at the topic from another historical angle in the Public Domain Review, in "Bad Air: Pollution, Sin, and Science Fiction in William Delisle Hay’s The Doom of the Great City (1880)". Beasley writes that Hay's book "imagines the entire population of London choked to death under a soot-filled fog. The story is told by the event’s lone survivor sixty years later as he recalls 'the greatest calamity that perhaps this earth has ever witnessed' at what was, for Hay’s first readers, the distant future date of 1942." He goes on:

Before we canonize Hay as an environmentalist and his story as An Inconvenient Truth in Victorian garb, we have to look at the story’s other features. Readers of The Doom of the Great City unfailingly notice that the story does not fit easily with other science fiction narratives, but seems to belong also to another class of tales, which Brian Stableford has called “ringing accounts of richly deserved punishment”. This is because Hay’s narrator seems to slide back and forth between material and moral explanations for pollution. While he talks of how “In those latter days there had been past years of terribly bad weather, destroying harvests”, he adds in the same paragraph, “prostitution flourished rampantly, while Chastity laid down her head and died! Evil! — one seemed to see it everywhere!”

The Old Man and the Sea

I recently came across an unusual blend of environment, law, history--and literature--in Enrique Guerra-Pujol's article, "Misappropriation and The Old Man and the Sea". The abstract:

We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?

The sea and the law

The latest issue of the Journal of Colonialism and Colonial History has an article by Stephanie Jones, "Maritime Space as Law and Light: Retrieving William Clark Russell's An Ocean Free-Lance (1882)". The abstract:

(New York Society Library)

William Clark Russell's An Ocean Free-Lance (1882) most obviously reads as a brittle homage to the nobility of a certain mode of imperial activity: it is, most apparently, a memorialisation of the privateer. But this is not the novel's only register. It also involves a broody engagement with oceanic space that is harder to interpret. This might simply be read within a belated-Romantic genre of novelistic yearning within the age of steam for the age of sail: in such terms, the novel easily reads as a critique of industrialisation. But the clear legal tones of the narrative and the novel's particular maritime aesthetics indicate that the nostalgia is more fully felt for the loss of a righteous order, a universal lex naturalis that is embodied in—that inhabits—the privateer. But even this is brought into question by the obscure poetics of light and water that slow down the plot and over-determine the atmosphere of the narrative. Via an engagement with recent historiographies of empire and of British privateering, against the background of work on the significance of law within nineteenth-century literature, and with the help of W.C.R.’s contemporary Robert Louis Stevenson, this paper reads An Ocean Free-Lance towards some larger speculations on the anxious meanings of the ocean as both an inhabited and abstracted space of empire.

Whales, seals, and foxes

Chris Tomlins recently posted "Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America", an extended and thoughtful comment on three articles from the University of Toronto Law Journal’s symposium on ferae naturae and the law of property (by Angela Fernandez, Robert Deal, and Bruce Ziff), containing, as well, extended reflections on Moby-Dick and on Robert Ellickson's Order Without Law.

The article, and the works it discusses, have a lot to say about the legal histories of whale-, seal-, and fox-hunting. Tomlins ends with some thoughts (condensed here, and with footnotes omitted) about directions that have not been taken in these histories:

from a diligent observer

Throughout Moby-Dick, the whale remains enigmatically silent. Historians don’t think much of those who ventriloquize (speak for) silent others. It is considered better form to try to find their voices so they can speak for themselves. Still, the void is sorely tempting. We know what Ahab said to the whale, at the end, on the way down: ‘to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.’ One wonders what the whale might have had to say in reply. I fancy what we would hear would be sad and bemused: these humans, their God, His promise of redemption, His grant of dominion . . . all so unfortunately unavoidable.

*****

Perhaps these cases may eventually help us to find our way to the animals rather than just to the law. 

Orcs in the history of environmental law. Really.

Thomas McGarity recently posted "EPA at Helm's Deep: Surviving the Fourth Attack on Environmental Law". The abstract:

In the second volume of J.R.R. Tolkien's The Lord of the Rings, Theoden, King of Rohan, learns that the armies of Saruman, the evil wizard, are advancing upon the defenseless city. He therefore orders the citizens to relocate to Helm's Deep, a massive fortress carved into the side of a mountain that has heretofore remained impenetrable. With the help of some elven allies who arrive in the nick of time from Rivendell, the Rohan soldiers repel wave after wave of attacks by the vicious Uruk-hai. As one wall is breached, the soldiers fall back behind an interior wall until at last there is nowhere to retreat. At that point, the king seizes the offensive, orders his soldiers to mount their steeds and take the battle to the enemy. Fortunately, at that moment Gandalf, a good wizard, returns to Helms Deep with a band of Rohan mounted soldiers, and the two armies put the enemy to rout.

For much of the past 30 years, the Environmental Protection Agency (“EPA”) and the laws that it administers have been under siege, much like the people of Rohan, from powerful economic, ideological and political actors who believe that the companies subject to EPA's regulatory authority should have greater freedom to go about their business unimpeded by “senseless” and “burdensome” regulations. The assaults came in three waves that peaked during the first years of the Reagan Administration, the first year of the 104th Congress, and the first six years of the George W. Bush Administration. During the first two years of the Obama Administration, EPA seized the offensive. Unlike the heroes of Helm's Deep, however, the forces of environmental progress were driven back behind the ramparts after only two years by a wholly unanticipated fourth assault from a reinvigorated business community that took advantage of an economic crisis brought on by the lack of federal regulation of the banking industry to inspire a populist uprising that inexplicably blamed federal regulation for the nation's current economic woes. Whether EPA and the foundational environmental laws that it implements will survive this fourth assault is by no means clear.

E.B. White and William O. Douglas

Mark Weiner's series from last month on E.B. White and mid-twentieth-century liberal internationalism has some interesting thoughts on the connections between thinking on international law and environmentalism in the writings of White and Justice Douglas. For more on Rachel Carson, travel writing, Charlotte's Web, and the connections between the natural world and the international community, see here and here.

Legal literature and the environment

Mark Weiner's post, "The Sound of One Book Clapping", artfully raises (at the end) the issue of the direct, material effects of the legal system and legal practices on the environment. My sense is that the effects of legal publishing on natural resources such as forests and water have been relatively marginal in the context of the publishing industry as a whole, but maybe that's not the case? Have societies at various times preferred particular types of papers, inks, or other inputs into the legal system with a distinct environmental footprint?

courtesy Harvard Law School Library

Recovering from the Recovery Narrative

SSRN has "Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization", another paper from Michael Burger (see an earlier post here) on the interactions between American cultural-environmental history and current legal issues. The abstract:

Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States.

Dickens, Kafka, and environmental law

Continuing our literary turn, Seth Jaffe's recent "Jarndyce v. Jarndyce Has Nothing On Comer v. Murphy Oil: The Fifth Circuit Court of Appeals Affirms Dismissal", on the "Law and the Environment" blog, discusses the bizarre story--Kafkaesque (more here) as well as Dickensian--of Comer v. Murphy Oil, a suit against greenhouse gas emitters brought by victims of Hurricane Katrina in US federal court.

Burger on Environmental Law/Environmental Literature

The latest issue of Ecology Law Quarterly has an article by Michael Burger on "Environmental Law/Environmental Literature", in which he examines the role of certain environmental narratives in contemporary environmental law. From the abstract:

Competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a kind of expressive, literary event.