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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 tha...

William Smyth Maynard Wolfe, “Maugerville on the St. John River, New Brunswick” (1853/1854) Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, "High Freshets and Low-Lying Farms: Property Law and St. John River Flooding in Colonial New Brunswick ". The abstract: Although New Brunswick was founded on private land ownership, colonists who settled low-lying land along the St. John River found that the waterway's erratic flood cycle and ever-changing nature threatened their lives and farms, and thwarted their efforts to divide riverbanks and islands into fixed parcels of private  property. This article draws upon colonial petitions, sessional court records, and colonial legislation in analyzing the response of the colonial legislature and of local governance to the challenge that the St. John River created for property rights and a private land management sys...

Gonzalo Rodriguez recently posted "Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta" . The abstract: No single factor has had a more significant effect on the ebbs and flows of history than water. Water creates civilizations, and water brings them to extinction. Even today, thousands of years after we learned to harness the power of water, we continue to struggle in determining how to prioritize competing uses of water resources, how to make water available to all who need it, and how to protect it. Yet, these are questions that humans have faced since as long as history dares to recollect. What factors guide civilizations in their decision whether, and to what extent, to regulate and protect inland waterways? This article looks at four legal codes from three distinct civilizations: From the Romans, The Institutes of Gaius and the Corpus Juris Civilis; from the Visigoth Kingdom, the Visigothic Code; and from the English, Magna Carta. This article propo...

John Echeverria recently posted "Antonin Scalia's Flawed Takings Legacy" . The abstract: This essay offers a generally negative appraisal of the significance of Justice Antonin Scalia’s work on the takings issue during his tenure on the Supreme Court. While Justice Scalia was a visible advocate for expanding the scope of regulatory takings doctrine, and his opinion for the Court in Lucas v. South Carolina Coastal Council represents an important precedent, the totality of Scalia’s takings work turned out to be relatively inconsequential. He only authored two majority opinions in takings cases during 30-plus years on the Court. No grand theory motivated his work on the issue, though he was surely sympathetic to the potential for the Takings Clause to constrain the permissible scope of government regulation. Scalia’s substantive contributions to takings jurisprudence are best understood as an effort to elaborate upon the two-part takings test articulated by Justice Lewis Pow...

"New" Jersey City reservoir, c. 1880 Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water , but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919: Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it.  Read more »

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT) Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights" , published in Environmental Law . The abstract: The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” i...

The latest Water History  has an article by Johann Tempelhoff, "The Water Act, No. 54 of 1956 and the first phase of apartheid in South Africa (1948–1960)". The abstract: After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas;...

Joseph Singer recently posted "Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest" , an article relevant, I think, to those engaged with the history of law and the environment. The abstract: John Marshall The case of Johnson v. M'Intosh, 21 US 543 (1823), is taught in many property law classes and is the only information given to new law students about the property rights of Indian nations. However, the case is often misunderstood as denying title to those nations. A close reading of the opinion, in light of three later cases decided in the early 19th century, reveals that the Supreme Court intended to recognize "Indian title" while granting the United States a right of first refusal if tribes sought to sell property on the open market to non-Indians. Far from denying tribal property rights, Justice Marshall's opinion in this case, as explicated by later cases, actually sought to protect tribal title from exp...

(A little off the beaten path for this blog, but--despite the title--not a joke. Thanks to Bruce Huber, John Langbein, and Shai Wozner for introducing me to the sources in this post.) I. The Pope Last year I was fortunate to be invited by Bruce Huber to participate in a great little conference on Pope Francis's encyclical on the environment, Laudato Si' . The conference and reading the encyclical got me thinking about the relationship between law, religion, and urgent matters of policy (such as the environment and social justice), with some help from a classic source in English legal history courses (see below). More specifically, it got me thinking about the relative absence of law in contemporary discussions of religion and the environment, exemplified by  Laudato Si'. Reading the document with legal eyes, one thing that caught my attention was the essentially legal argument that the Pope makes about the responsibility of privileged classes and nations towards those less ...

Youngstown Sheet and Tube Company’s Campbell Works, Youngstown, Ohio (c. 1960) Ohio Valley History  recently published Allen Dieterich-Ward's "'We’ve Got Jobs. Let’s Fight for Them': Coal, Clean Air, and the Politics of Antienvironmentalism" . From the introduction (notes omitted): Narrating the history of the environmental opposition has grown in importance over the past four decades as the rapid expansion of environmental laws gave way to a conservative antienvironmental movement determined to roll back policies seen as challenging older legal imperatives and in conflict with economic goals. Since the 1980s, first journalists and then historians have focused on the back and forth of environmental policymaking. The basic narrative is of an environmental backlash, which began in the mid-1970s in western states—the Sage Brush Rebellion that formed one of the conservative pillars in Reagan’s coalition. By the 1990s, protests over tightening federal land regulations ...