Spirit over the waters

Chicago Sanitary & Ship Canal, original Lockport Lock (American Canal Society)

I recently came across Paul Janicke's website Spirit Over the Waters, which contains libraries of cases having to do with the Lake Michigan water diversion controversies (1900-present) and related patent infringement controversies on wastewater treatment (1914-1947). The site explains the first set of cases:

Twenty percent of the world’s fresh water in the world is in the Great Lakes. That water has drawn significant interstate controversies for over 100 years. States have had recourseto the Supreme Court seven times, testing what a state can or cannot do with the water of Lake Michigan. The most important of the cases, the one between Illinois and the other lake-bordering states, was filed in 1922 and is still open today. The central issue has been the withdrawal by Illinois of significant quantities of Lake Michigan water to use as flush water for Chicago’s human and industrial wastes, sending them westward into the Mississippi .Other issues evolved as well. 

The Supreme Court has been the main decider.

In most instances of controversy the Supreme Court appointed a special master to gather the evidence and recommend resolution. The Court’s decision in each instance is readily available, but none of the underlying masters’ reports and related briefing are in the Court’s records today. For this library all the special masters’ reports, and much of the states’ briefing, has been recovered, along with significant evidentiary and background materials. It is hoped that scholars and members of the public will find this long story pertinent to contemporary discussions regarding water supply in an era of major droughts in many parts of the country.

And the second:

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

Environmental-policy-relevant history

I suspect we'll be hearing a lot in the coming months about The History Manifesto by David Armitage and Jo Guldi (Cambridge UP, forthcoming, available already for free on line). In the meantime Armitage gives us a preview in The Guardian, including this on history and current environmental policy (links added):

Debates on climate change also reflect the advantages and the limitations of historical perspective. On the one hand, Barack Obama’s former undersecretary for science in the US energy department, Steven Koonin, has recently argued for humility about future policy because we lack long-run data about the role of the oceans in climate change: “Precise, comprehensive observations of the oceans are available only for the past few decades.” On the other, historical economist Anil Markandya has shown that environmental regulation in 19th-century Britain did not have “any serious impact on GDP per capita”, overturning the orthodoxy that there is a necessary trade-off between growth and environmental protection. Meanwhile, French historians Sabine Barles and Gilles Billen have examined Paris’s “nitrogen footprint” to show how urban managers there invented sustainable practices for recycling waste in large cities: these are precedents relevant to practice and policy today.

UK sulfur emissions/capita, real GDP/capita, selected air pollution regulations
(Markandya et al, Envtl & Resource Econ (2006) 35: 221-257)