faulker080

I'm reposting (with permission) an email I recently got from Jim Salzman (the picture is my own addition): We are writing to invite you to participate in a survey we trust you will find interesting and fun. In 1999 and 2009, JB Ruhl (Vanderbilt Law School) and I surveyed environmental law practitioners and academics about which Supreme Court cases they thought were the most important to our field. The 1999 results were published in ABA’s Natural Resources & Environment, and the 2009 results were published in ELI’s The Environmental Forum. A decade later, we have prepared the 2019 survey and are eager to see how the data have changed. We intend to publish the results this Winter. Please click here for the link to the survey. We are posting this information on multiple environmental law list serves and apologize for cross-listings. Please take the survey only once. We hope you will take the two minutes needed to complete the survey to help give us as much data as possible.  Than...

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website : Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise. It's a pretty amazing document. Here's an excerpt: As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lo...

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946" : This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the...

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 (par...

(The final installment in the series on water rights :) Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence ( Caponera, 1954 ). Under the system of riparian rights, domestic or "natural" uses have preference over other uses ( Beck, 2000 ), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation ( Trelease, 1955 ). China's water law, too, exempts household and other small quantity uses ( Wouters et al., 2004 ). Recent years have seen an explosion of interest in the idea of a right to water framed in...

Dan Farber recently posted  at Legal Planet on the 35th anniversary of Lucas v. South Carolina Coastal Commission , "the high-water mark of the Supreme Court’s expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation." (For an earlier post on the case, see here .) Farber writes: Lucas epitomized the late Justice Scalia’s crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Thirty-five years later, it is striking how little impact the case has had. Under...

Marco Island in 1964 (left) and present day (Michael Coleman) Slate recently published a piece by Henry Grabar, "The Lessons of Marco Island" , on the Florida island that was savaged by Hurricane Irma last week and the legal history that enabled its development while protecting nearby wetlands. Some highlights: Forty years ago, the consensus of the state and federal governments was that Marco Island should not have been built at all. The community was the setting for one of the biggest development controversies in the United States and nearly ruined one of Florida’s largest and most celebrated developers. In a region with a notorious building addiction, it became the site of the environmental movement’s greatest victory over the Florida growth machine. Ecological foresight halted millions of dollars in real estate development and all but ended an engineering technique that had turned the South Florida coast from swampland to resort. ***** When brothers Robert, Elliott, and Fr...

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...

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...

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...