Aldo Leopold's last talk

Dan Ernst at the Legal History Blog has this post:

A Sand County Almanac was a big book for me as an adolescent, so I’m especially happy to note that Eric T. Freyfogle, University of Illinois College of Law, has posted Leopold's Last Talk, which appears in the Washington Journal of Environmental law and Politics 2 (2012); 236. 

Local vs state regulation

As noted here last month, Joel Tarr presented a very interesting paper on the regulation of natural gas drilling in nineteenth-century Pennsylvania at the 2013 meeting of the American Society for Environmental History. In the wake of the conference he was kind enough to send me a link to a piece he published last year in the Pittsburgh Post-Gazette (kudos to the newspaper for publishing serious stuff like this), "When the Streets Ran with Gas".

Though state-federal relations and federal preemption of state environmental law garner much attention today (e.g. here and here), Tarr's piece reminds us that tensions between environmental regulation by local governments and the law of higher levels of government were and continue to be a major source of conflict regarding the legal regulation of the environment (and not just in the US). The article explains that one of the major political and legal issues regarding shale fracking today, "the right of municipalities to enact regulations controlling natural gas operations within their boundaries without conflicting with state law... was also prominent in the 1880s during the early days of traditional natural gas development and distribution", and goes on to explore litigation and legislation over this issue in 1880s Pennsylvania.

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.

The public trust doctrine and origin stories

Michael Blumm and Mary Wood have posted Chapter 1 of their forthcoming The Public Trust Doctrine in Environmental and Natural Resources Law (Carolina Academic Press, 2013) on SSRN. According to the abstract, this casebook has a strong historical component:

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right to challenge governments concerning their management of PTD resources.

Why Water Rights Was Never a 'Right'

Paul Finkelman has posted to SSRN "Why Water Rights Was Never a 'Right': Historical Perspectives on American Water Law". As the abstract explains, the article

explains how the history of access to water in England and early America makes it difficult (but not impossible) to develop a “right” to water under traditional Anglo-American common law. This article ties physical geography – including the amazing abundance of water in the eastern part of the United States, with common law developments. The article also considers, briefly, that right of access to water for religious purposes and access to water under [American] Indian law.

Business influence on legislation

Thomas Jundt reviews Sarah Elkind's How Local Politics Shape Federal Policy: Business, Power, and the Environment in Twentieth-Century Los Angeles (UNC Press, 2011) in the latest issue of Environment and History. Jundt writes:

While other studies have explored national organisations and politics, Elkind focuses on how power was also flowing outward from local business elites to influence both local and national policy. In five case studies centred on a booming Los Angeles from 1920 through the early 1950s, she explores how business associations dominated local politics on environmental issues and influenced federal policy. Because they possessed superior means to frame local discourse, draft legislation, and conduct studies on contentious issues to provide the appearance of an objective basis for the actions of local politicians, business groups successfully insinuated themselves as the voice of the people. Opposition groups simply could not match their resources, public appeal (business provided jobs), or access to officials.

Wild horses, environmental history, and law

The New York Times website has a new video, "Wild Horses: No Home on the Range", which explores the unintended environmental consequences of the US Wild Free-Roaming Horses and Burros Act of 1971. The so-called wild (actually feral) horses or mustangs are a classic example of the culture/nature hybrid that Paul Sutter writes about in his essay discussed here a few days ago, as is the western range in which they compete with livestock for resources.

This environmental history has a rich legal history as well.

Environmental history and law—a new research agenda?

As noted here last Friday, Paul Sutter's recent JAH essay on the state of American environmental history lacks any mention at all of law as a factor in environmental history or historiography. Linda Nash's "Furthering the Environmental Turn", one of the responses published alongside the essay, advances some interesting views on the future of the field that seem to also hold promise for bringing environmental history and legal history closer together. Nash writes that

it is possible to read Sutter’s review as evidence that the field has (still) not advanced strong claims or methods that other kinds of historians must engage. Unless a scholar is already interested in environmental change or fish or birds, environmental history is a subfield that, while capable of producing great books, is not necessarily of larger consequence. Perhaps, then, it is time to reframe the issue. Perhaps environmental historians should acknowledge that theirs is less a coherent “field” of study structured around key archives, topics, or questions... than an orientation. Though in some ways the concern with bringing environments into history is similar to an earlier effort to bring in race and gender, “environment” is not exactly a category of analysis if only because environments are surely more than (social) categories. As the field has become more diverse, what binds it together is a strongly held belief that material environments—for all their sociality, historicity, and constructedness—always matter to history. In Ellen Stroud’s apt phrase, environmental historians “follow the dirt.”

The history of American property

With all the recent posts on the rule of capture, equitable apportionment, and the like, readers may be interested in Douglas Harris's review of Stuart Banner's American Property: A History of How, Why, and What We Own (Harvard, 2011). Harris, who has written on (among other things) the history of fisheries law, explains that

Property law deals with the allocation of scarce resources and therefore is also about the allocation of power. Understood this way, property law can be a lens through which to understand many of the most pressing social issues of the day.

American environmental history without law

The latest Journal of American History has a "state of the field" essay, with an accompanying series of responses, on American environmental history (with free access). The essay, by Paul Sutter, explores the way in which the field has developed since a round table published by the journal in 1990, and references a large amount of literature which should be of use to readers of this blog.

A major theme of the piece is the move from a conception widespread among the founding generation of the field which focused on a divide between humans and nature, to the currently prevalent "hybrid" view, according to which nature and culture have interacted in complex ways. This change has implications not only for the assumptions that guide historical scholarship but also for the normative implications derived from it.

Given the depth and breadth of the field of environmental history today, Sutter is necessarily and avowedly selective in the topics he covers, but one absence that was glaring to me was (not surprisingly) the lack of any mention at all of law as a factor in environmental history. I mean this not as a criticism of Sutter but as a point upon which to reflect. Was law left out of the survey despite recognition of its importance, or was it ignored because it is not on Sutter's radar (as seems to be indicated by his discussion of lacunae in the essay, pp. 99-100) and is generally seen as peripheral to the field?