faulker080

Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981: Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then. Even though the statutes are the same, there have been a massive n...

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential  Nature's Metropolis  (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts: [Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries. This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica . The most important distinction, perhaps, was between the human and the nonhuman: pr...

I'm pleased to announce that The Oxford Handbook of Legal History , edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here . The book is available both in print and online . I'd be happy for any comments on my paper!

The Boston Review  recently published Andrew Kahrl's "Free the Beach", an essay adapted from his  Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism: For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois , which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity. Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at...

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...

Sarah Krakoff recently posted a critical take on Edward Abbey on Environmental Law Prof Blog. Some highlights: Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort , we need his irascible, cranky, and irrepressible voice today more than ever.   But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienati...

Slate's Issac Chotiner recently interviewed Eliza Griswold on her new book, Amity and Prosperity: One Family and the Fracturing of America  (Macmillan, 2018). In the interview (and presumably the book) Griswold displays a strong historical sensibility about the legal-environmental roots of some of America's (and hence the world's) current predicament. An excerpt: Isaac Chotiner: What is it that is “fracturing” America? Eliza Griswold: These days we are hearing so much about this rural/urban divide. What does that really mean? What is the source of disenfranchisement for rural Americans? Much of it stems from natural resources. Rural Americans have paid for the energy appetites of urban Americans for more than a century. I think a lot people in urban America would hear that and say, “Well, the people who are voting for candidates who are less interested in environmental protections are coming from rural America, and the people who are voting the opposite way are coming from ...

This week's addition to the digital library of historical environmental law is Thomas Baker's  The Laws Relating to Salmon Fisheries in Great Britain, published in London by Horace Cox in 1866. Baker, the title page tells us, was a barrister of the Inner Temple and the Salmon Fisheries Office, and also the author of works on public health law. In the preface to the work Baker explained the need for a work on salmon law: The Salmon Fisheries of this country have, by long neglect, become greatly injured. Poachers, thoughtless anglers, ignorant fishermen, and, above all, the abuses arising from the use of fixed engines, and the loose manner in which the close seasons were fixed, threatened the total destruction of the fish. To remedy this state of things, several statutes have at length been passed, applicable to Great Britain. The first pages of the work proper have this Python-esque clarification: To prevent any misapprehension, it is defined [by the Salmon Fishery Act of 1861...

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's  The Laws of England Relating to Public Health , published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law" . You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained . A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's...

In the common-law world, historical and legal argument are frequently intertwined, a phenomenon reflected in the title of this week's addition to the digital library of historical environmental law , Stuart A. Moore's A History of the Foreshore and the Law Relating Thereto , published in London by Stevens & Haynes in 1888 ( available on the Internet Archive and in Gale's The Making of Modern Law ). Moore's work was part of a wave of antiquarian interest in early writings on property rights in the seashore (today this topic would be labeled "public trust doctrine") that seems to have been motivated largely by legal and economic issues at stake during Britain's industrial revolution. So in addition to his treatment of a legal manuscript by the Elizabethan-era mathematician Thomas Digges and other early sources , Moore reproduced in his work "A New Treatise by Sir Matthew Hale, from a MS. in his Handwriting", which Moore believed to be an early ...

After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the  Tractatus de fluminibus seu Tyberiadis  (1355,  1576 edition (source of the images in this post) here ) of the great medieval Italian jurist Bartolus of Saxoferrato. As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship: This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near ...

This week's installment in the digital library of environmental law moves ahead to the twentieth century with Carl E. Geuther's Compendium of Water Pollution Laws ,  published in 1959 by the Manufacturing Chemists' Association, headquartered in Washington, DC. This was the fifth in a series of "Water Pollution Abatement Manuals" published by the trade organization, evidently with a target audience of engineers, managers, and other non-lawyer employees of the chemical industry. Geuther, a lawyer, worked at the time for Du Pont Chemicals; he also seems to have represented them and other chemical companies in court at various times. The Preface explains that the manual is: a compendium of the laws of the forty-nine states (including the District of Columbia, the Territory of Hawaii, Puerto Rico, and the federal laws of the United States as they pertain to water pollution and water pollution abatement). Statutes and regulations of archaic vintage that are ignored by ...

Following up last week's post on Michael Lobban's piece on the British Rivers Pollution Prevention Act, 1876 , the second work to be added to our digital library of historical environmental law is Clement Higgins's  A Treatise on the Law Relating to the Pollution & Obstruction of Watercourses ,  published in London by Stevens and Haynes in 1877 (a year after enactment of the water pollution legislation). (An 1882 advertisement for the work is here .) Just as the treatise on game law covered here last week emphasized the inherent conflict of interest between different social groups and the distributive effects of the law, Higgins writes in the Preface: It is to the interest of the public, and to the majority of riparian proprietors, to protect the purity of our rivers, whereas it is generally to the convenience of sanitary authorities and of manufacturers to pollute them. An attempt is made in this book to place before the protectors of our rivers the nature of their ri...

Barada River in Damascus Yehoshua Frenkel, a professor at University of Haifa and member of our local environmental history forum , recently pointed me to a 2011 chapter by Boaz Shoshan on water law, "Mini-Dramas by the Water: On Irrigation Rights and Disputes in Fifteenth-Century Damsacus" . The abstract: Apart from discussions of matters of irrigation in legal works, medieval sources provide us with little information on the human dynamics and social interaction that are an integral part of irrigation systems. Some cases involving water were straightforward, whereas others were not. A laconic statement about a settlement ( ṣulḥ ) that was reached in Muḥarram 886/March 1481, in the presence of the viceroy of Damascus and the chief qāḍīs, between one Kamāl al-Dīn and Shihāb al-Dīn al-Muḥawjib concerning water that was coercively ( zulman ) diverted from the al-Manshīya river canal, provides us with only a faint echo about such conflict. Fortunately, on other occasions of wate...

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on  A New Treatise on the Laws for Preservation of the Game,  first published in 1764; the second edition, available online , was printed in London in 1766 by His Majesty's Law Printers. The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham , a prolific author of law books in eighteenth century Britain. The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation ( Oklahoma!, anyone? ): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So ...

In order to add some variety to the Environmental, Law, and History blog, as well as to create something I hope will be of lasting value to those interested in the field, I've decided to begin a series of posts on old books on environmental law, and then collate links to the works in an online "digital library". By "environmental law" I mean anything substantially focused on the interaction of law and what we think of today as environmental issues (including "natural resources"), and by  "old" I mean written no later than 1970. My preference will be for works in the public domain and easily accessible on line, though I'll also link to editions available only in for-pay databases when appropriate. (I also admit to a preference for the odd, the funny, and the bizarre, though these are admittedly subjective criteria and I do not intend to limit myself to them.) I hope to be able to do this on a weekly basis, so please look for the posts on S...

(Continuing the series on water rights - the first installment was here .) Property in water takes a great variety of forms. Many countries' laws state that all water is the property of the public or the state ( Trelease, 1957 ; Cumyn, 2007 ; Sun, 2009 ; Schorr, 2013 ). Most civil law countries, following Roman law, distinguish between public and private waters. The "absolute dominion" rule of the common law, still in force in some American states, treats groundwater as an unowned resource, open to capture by any overlying landowner ( Dellapenna, 201 3). The riparian rights system of the common law views water sources as the common property of all landowners abutting the source ( Getzler, 2004 ). The system of prior appropriation applied in the western United States recognizes private property rights to amounts of flows of water. In Australia ( Davis, 1968 ) and western Canada the Crown owns the water and distributes it to users through a permit system ( Percy, 2005 ). ...

The Tennessee Valley Authority continues to produce environmental-legal history. Now (as we learned from Legal History Blog and Legal Theory Blog ) Atif Ansar has posted "The Fate of Ideals in the Real World: A Long View on Philip Selznick's Classic on the Tennessee Valley Authority (TVA)" . The abstract: Philip Selznick’s first book — TVA and the Grass Roots: A Study in the Sociology of Formal Organization (1949) ("TGR")—tells the story of how the the ideals of the Tennessee Valley Authority (TVA) were thwarted by the reality of political pressures from its environment. Although TGR boasts one of the highest citations for a scholarly work in management, project management scholars do not cite it. Why has project management scholarship lost one of its founding classics? We investigate why TGR meets the criteria of a classic. We show that TGR’s focus on societal outcomes and ideals is an improvement on conventional project management’s focus on technical outpu...

"Diploma" of Frederick Barbarossa granting navigation rights to the monastery of San Carpoforo di Como (1159) I recently came across Acque della Lombardia Medievale,  apparently the catalog for an exhibition held by the Biblioteca Ambrosiana di Milano in 2015 . (If you're ever in Milan, don't miss the associated Pinacoteca Ambrosiana.) The editors, Federico Gallo and Rita Pezzola, write: According to Roman law, one defines every permanent water-course as " publicum " whether it was navigable or not, and only rivulets and streams were considered private. During the Middle Ages and in particular in the 10th and 11th centuries, we find more and more imperial and royal diplomas giving grants and donations related to stretches of rovers: they refer to the construction of ports and mills and to fishing and navigating rights. Thus the principle, or better the custom, of considering some parts of a river as capitalized (today we would say "privatized") was...

New Book Network recently posted an interview with Eric Ash about his new book, The Draining of the Fens:  Projectors, Popular Politics, and State Building in Early Modern England   (JHU Press, 2016). NBN writes: Today “The Fens” is largely a misnomer, as the area of eastern England is now largely flat, dry farmland. Until the early modern era, however, it was a region of wetland marshes. Eric Ash‘s book... describes how The Fens was transformed into the environment we know it as today. As Ash explains, the marshes supported a population that took advantage of the lush grasses produced by the regular flooding to engage in animal husbandry, with flood control managed locally through appointed commissions of sewers. In the late 16th century, however, a combination of environmental change and political shifts led the royal government to support proposals for large-scale drainage projects that would turn the wetlands into farmlands. Though the plans’ advocates argued that drainag...